This document summarizes recent child welfare cases from Georgia's appellate courts. It covers topics like the juvenile court's jurisdiction and authority, the rights of parents, and evidentiary issues. Regarding the court's authority, recent challenges involve claims that a case is really a custody dispute, the court's contempt powers, and its authority over placement. The document also discusses proper service of parents, deprivation and termination of parental rights cases, and appellate issues in child welfare cases.
California child custody and visitation modificationsLegalDocsPro
Child custody and visitation modifications in California
are the topic of this issue of the weekly legal newsletter from LegalDocsPro. This is issue number 72. The author is an entrepreneur and freelance paralegal who has worked in California and Federal litigation since...
Letter Writing Sample for Grandparent Custody, Possession, Visitation in OregonLewis Castro
This letter summarizes Oregon law regarding grandparent visitation rights for Mr. and Mrs. Harbin. It notes that grandparents do not always have an automatic right to visitation, but that Oregon law provides factors for courts to consider in determining if visitation is appropriate. The letter argues that the Harbins have met at least three of the five factors due to their long history of caring for the children and the potential harm of limiting contact. It advises filing a petition for intervention to seek court-ordered visitation and offers contact information to represent the Harbins.
The document discusses grandparents' rights regarding visitation with grandchildren. It addresses two common situations: 1) A grandparent who wants to see their grandchildren but is denied visitation by the parent. In this case, the grandparent must sue for visitation rights, establishing a substantial pre-existing relationship with the child. 2) A grandparent who has assumed defacto custody of their grandchild. In this situation, the grandparent must take legal steps to formalize their custody rights in order to make routine parental decisions.
Writing sample (petition for review- abbreviated) for Martinez, AaronAaron A. Martinez
This document is a petition for review filed with the Supreme Court of Texas appealing a lower court's dismissal of a father's appeal of the termination of his parental rights. The petition argues that the Texas statutory scheme granting indigent parents the right to appointed counsel in termination proceedings is unconstitutional because it only mandates counsel when the state initiates termination, not in private termination suits. This denies equal protection and due process to indigent parents like the petitioner who were not automatically appointed counsel when facing termination sought by a private party. The petition asks the Supreme Court to grant review to resolve this important constitutional issue of first impression.
SHurd Sample of Legal research, and Sample letter to Client on Grandparent Ri...Sandra Hurd
This letter summarizes research conducted on grandparent rights and visitation for clients seeking visitation with their grandchildren. It recommends petitioning the court for a regular visitation schedule to establish rights before the daughter-in-law remarries and moves out of state. Administrative agencies like DHS and DOJ may assist with a home study and appointing an attorney to advocate for the children. Statutes indicate a child-parent relationship must exist, which the research establishes. The letter provides websites for more information and offers legal assistance filing the petition.
This case involves a minor plaintiff who was injured at a trampoline park. The minor's mother had previously signed a release on behalf of the minor that included a forum selection clause designating California as the proper forum, a choice of law provision applying California law, and a waiver of liability. The trial court refused to enforce these provisions. The appellate court affirmed the trial court's refusal to enforce the forum selection clause, choice of law provision, and waiver of liability against the minor. However, the appellate court reversed the trial court's denial of the minor's motion to amend his complaint to allow recovery of pre-majority medical expenses that were paid by the minor or that he is legally obligated to pay. The case was
The email discusses issues related to a child support case involving Mr. Malenko. The attorney, Mr. Waxman, is frustrated that the Department of Health and Human Services (DHHS) has taken enforcement actions against Mr. Malenko related to alleged child support arrears despite motions pending in court. Mr. Waxman wants to know who at DHHS can correct inaccuracies in the amount owed and stop enforcement actions. He also asks about any fee arrangement DHHS has with Ms. Handrahan, the other party in the child support case.
Discretionary Appeals from Juvenile Court - TPR Casesbartoncenter
A 10-year retrospective of the appeals and reversals of termination of parental rights rulings in Georgia presented by Tom C. Rawlings, child advocate attorney and former juvenile court judge. This presentation was given at the Georgia Child Welfare Legal Academy
California child custody and visitation modificationsLegalDocsPro
Child custody and visitation modifications in California
are the topic of this issue of the weekly legal newsletter from LegalDocsPro. This is issue number 72. The author is an entrepreneur and freelance paralegal who has worked in California and Federal litigation since...
Letter Writing Sample for Grandparent Custody, Possession, Visitation in OregonLewis Castro
This letter summarizes Oregon law regarding grandparent visitation rights for Mr. and Mrs. Harbin. It notes that grandparents do not always have an automatic right to visitation, but that Oregon law provides factors for courts to consider in determining if visitation is appropriate. The letter argues that the Harbins have met at least three of the five factors due to their long history of caring for the children and the potential harm of limiting contact. It advises filing a petition for intervention to seek court-ordered visitation and offers contact information to represent the Harbins.
The document discusses grandparents' rights regarding visitation with grandchildren. It addresses two common situations: 1) A grandparent who wants to see their grandchildren but is denied visitation by the parent. In this case, the grandparent must sue for visitation rights, establishing a substantial pre-existing relationship with the child. 2) A grandparent who has assumed defacto custody of their grandchild. In this situation, the grandparent must take legal steps to formalize their custody rights in order to make routine parental decisions.
Writing sample (petition for review- abbreviated) for Martinez, AaronAaron A. Martinez
This document is a petition for review filed with the Supreme Court of Texas appealing a lower court's dismissal of a father's appeal of the termination of his parental rights. The petition argues that the Texas statutory scheme granting indigent parents the right to appointed counsel in termination proceedings is unconstitutional because it only mandates counsel when the state initiates termination, not in private termination suits. This denies equal protection and due process to indigent parents like the petitioner who were not automatically appointed counsel when facing termination sought by a private party. The petition asks the Supreme Court to grant review to resolve this important constitutional issue of first impression.
SHurd Sample of Legal research, and Sample letter to Client on Grandparent Ri...Sandra Hurd
This letter summarizes research conducted on grandparent rights and visitation for clients seeking visitation with their grandchildren. It recommends petitioning the court for a regular visitation schedule to establish rights before the daughter-in-law remarries and moves out of state. Administrative agencies like DHS and DOJ may assist with a home study and appointing an attorney to advocate for the children. Statutes indicate a child-parent relationship must exist, which the research establishes. The letter provides websites for more information and offers legal assistance filing the petition.
This case involves a minor plaintiff who was injured at a trampoline park. The minor's mother had previously signed a release on behalf of the minor that included a forum selection clause designating California as the proper forum, a choice of law provision applying California law, and a waiver of liability. The trial court refused to enforce these provisions. The appellate court affirmed the trial court's refusal to enforce the forum selection clause, choice of law provision, and waiver of liability against the minor. However, the appellate court reversed the trial court's denial of the minor's motion to amend his complaint to allow recovery of pre-majority medical expenses that were paid by the minor or that he is legally obligated to pay. The case was
The email discusses issues related to a child support case involving Mr. Malenko. The attorney, Mr. Waxman, is frustrated that the Department of Health and Human Services (DHHS) has taken enforcement actions against Mr. Malenko related to alleged child support arrears despite motions pending in court. Mr. Waxman wants to know who at DHHS can correct inaccuracies in the amount owed and stop enforcement actions. He also asks about any fee arrangement DHHS has with Ms. Handrahan, the other party in the child support case.
Discretionary Appeals from Juvenile Court - TPR Casesbartoncenter
A 10-year retrospective of the appeals and reversals of termination of parental rights rulings in Georgia presented by Tom C. Rawlings, child advocate attorney and former juvenile court judge. This presentation was given at the Georgia Child Welfare Legal Academy
1) New York law provides for full disclosure of all material relevant to prosecuting or defending a legal action. School records are generally admissible in trials if authenticated, though privileged family medical information may be redacted.
2) A 1991 case established that school records of a non-party sibling could be discoverable if an expert affidavit demonstrates their potential relevance, such as a genetic link between conditions. Subsequent cases debated whether records of non-party family members require sufficient expert evidence and consideration of privacy.
3) The admissibility of parental and sibling academic records remains decided on a case-by-case basis, balancing relevance, privacy, and whether discovery risks speculative fishing expeditions versus narrowing issues for trial.
This document summarizes a court case regarding the termination of a mother's parental rights. The juvenile court had found the children dependent and neglected due to the mother's inability to care for them and physical abuse by the father. The children were placed in foster care. The state filed to terminate the mother's parental rights for noncompliance with the permanency plan and persistence of conditions. The trial court agreed and terminated the mother's rights. The mother appealed. The appellate court summarized the issues as whether there was clear and convincing evidence of (1) substantial noncompliance with the permanency plan; (2) persistence of conditions; and (3) best interests of the children. The appellate court ultimately reversed the termination due to failure to enter
After public outcry for more oversight and access to juvenile courts, Georgia's legislature passed SB 207 seeking to balance the interests of privacy of children and families involved with Georgia's juvenile courts with the public's interest in transparency and the work of the court.
The EEOC filed suit against Bass Pro Outdoor World and Tracker Marine for violations of Title VII. The EEOC filed a motion for partial summary judgment, arguing that courts can review whether the EEOC attempted conciliation but not how it conducted conciliation. The court denied the EEOC's motion. The court held that under Fifth Circuit precedent, it can review the EEOC's conciliation efforts using a three-part test to evaluate whether the EEOC satisfied its statutory duty to conciliate in good faith. The court also found the EEOC's additional arguments against judicial review of conciliation efforts to be unpersuasive.
Waiver of Privilege for Documents Inadvertently Disclosed During DiscoveryAndrew N. Plasz
The document discusses the law around inadvertent disclosure of privileged documents in Illinois courts. It explains that courts in Illinois follow a three-part test to determine if an inadvertently disclosed document remains privileged: 1) Does the privilege apply to the document? 2) Was the disclosure inadvertent or voluntary? 3) If inadvertent, was the privilege nonetheless waived? It then reviews the key considerations and tests (objective, subjective, balancing) courts use to evaluate each part of this test. The document provides an overview of the complex, unsettled law governing inadvertent disclosure of privileged documents in Illinois.
Dependency and Neglect Proceedings In Juvenile CourtHealth Easy Peasy
This document summarizes Tennessee laws and procedures related to child abuse and neglect referrals and dependency and neglect cases in juvenile court. It outlines who must make a child abuse referral, the process after a referral is made, and key aspects of investigations, custody determinations, permanency planning hearings and more. Key parties in the process are outlined, including the roles of the Department of Children's Services and juvenile court.
West Virginia Supreme Court of Appeals Memorandum Decision No. 18-0230 (Putna...Putnam Reporter
A memorandum decision by the West Virginia Supreme Court of Appeals in the case of Mark Vance Halburn v Dolores J. M. No. 15-0350 (Putnam County 11-D-516) September 9, 2019.
"The Same-Actor Inference: A Look at Proud v. Stone and its Progeny" Employme...C. Scott Schwefel
1) The "same-actor inference" is a legal doctrine where an inference of nondiscrimination exists if the person who terminated an employee is the same person who hired them, and the hiring and firing occurred within a relatively short time span. The logic is that it is unlikely a person would hire someone from a protected class and then fire them for being a member of that class.
2) The doctrine originated in a 1991 Fourth Circuit case where a 68-year old plaintiff was fired 6 months after being hired by the same person. The court found an inference of nondiscrimination in such a situation.
3) While originally applying when the same individual did both the hiring and firing, courts have extended it to
This newsletter summarizes two recent court cases related to reinsurance:
1) The New York Court of Appeals reversed summary judgment in a case involving allocation of an asbestos settlement between a cedent and reinsurers. The court found issues of fact around the reasonableness of the cedent's allocation assumptions.
2) The Second Circuit held that the question of whether a contract clause provides for arbitration is governed by federal common law when the Federal Arbitration Act applies through the New York Convention. The court affirmed that an insurance contract clause allowing medical examinations to determine disability was an arbitration clause.
Supreme Court Agrees to Hear Two Cases on Attorneys' Fees in Patent CasesPatton Boggs LLP
The Supreme Court agreed to hear two cases that deal with awarding attorneys' fees in patent cases. In the first case, Octane Fitness v. ICON Health, the Court will consider whether to lower the standard for determining an "exceptional case" in which fees can be awarded. In the second case, Highmark v. Allcare Health, the Court will determine how much deference appellate courts must give to lower court decisions on awarding fees. These rulings could make it easier for prevailing parties to recoup fees and deter patent holders from filing weak infringement claims.
The Supreme Court of Florida ruled on whether the attorney-client privilege protects a party from having to disclose that their attorney referred them to a treating physician. The court determined that such a disclosure implicates confidential communication between the attorney and client and is therefore protected by attorney-client privilege. This decision quashes the ruling of the Fifth District Court of Appeal, which had ordered the disclosure.
This document summarizes issues related to domestic restraining orders. It discusses how restraining orders are obtained through a two-step process and are often issued on an emergency basis without the respondent being present. It estimates that around 60% of the millions of restraining orders issued annually are unnecessary or false. The document also discusses how restraining orders can negatively impact families and violate due process, as well as problems with gender bias in their issuance and victims sometimes being wrongly accused of abuse.
Homework 5STA 44425440Problem 1Consider two random.docxadampcarr67227
Homework 5
STA 4442/5440
Problem 1:
Consider two random variables X and Y with the following joint probability
mass function:
Y
0 1 4
X 1 0.2 0.05 0.25
3 0.05 0.2 0.25
5 0.15 0 0.05
(a) Find ρ(X,Y );
(b) Find V ar(X + Y );
(c) Find E(2X −
√
Y ).
Problem 2:
If a random variable X has the moment generating function
MX (t) =
pet
1 − (1 −p)et
,
what is E(X)?
Problem 3:
It is known that, if X ∼ Poisson(λ), then its moment generating function is
MX (t) = exp(λ(e
t − 1))
Now suppose X1,X2 are two independent Poisson random variables with pa-
rameters λ1,λ2, respectively, what is the distribution of Y = X1 + X2?
Problem 4:
Suppose X1, . . . ,X36 are independent standard normal random variables, what
is P(X̄ > 1)?
1
Page 228
93 Wn.2d 228 (Wash. 1980)
608 P.2d 635
In the Matter of the Guardianship of Edith Melissa
Maria
HAYES, a minor.
No. 45612.
Supreme Court of Washington, En Banc.
March 27, 1980
[608 P.2d 636]
Page 229
Ries & Kenison, Larry W. Larson, Moses Lake,
Catherine C. Morrow, Karen Marie Thompson, Seattle,
for appellant.
Mental Health Law Project, Judith E. Cohn, Michael
S. Lottman, Norman S. Rosenberg, Washington, D. C.,
Evergreen Legal Services, Linda Potter, Seattle, for
respondent.
HOROWITZ, Justice.
This appeal raises the question whether the Superior
Court for Grant County has authority to grant a petition
for sterilization of a severely mentally retarded person.
Petitioner Sharon Hayes is the mother of Edith
Melissa Maria Hayes, who was born severely mentally
retarded on December 17, 1963. She petitioned the
Superior Court for an order appointing her as the
guardian of Edith's person and specifically authorizing a
sterilization procedure on Edith. The court dismissed the
petition on a motion for summary judgment on the
ground it had no authority to issue an order for
sterilization of a retarded person. Petitioner appeals the
court's conclusion it cannot authorize [608 P.2d 637]
sterilization of a mentally incompetent person. She does
not raise the question whether the court properly denied
her petition to be appointed guardian of Edith's person.
We hold that the Superior Court has jurisdiction to
entertain and act upon a request for an order authorizing
sterilization of a mentally incompetent person under the
Page 230
broad grant of judicial power in Washington Const. art.
4, § 6. We further hold that, in absence of controlling
legislation, the court may grant such a petition in the rare
and unusual case that sterilization is in the best interest of
the retarded person. We therefore reverse the order
granting summary judgment and remanded for further
proceedings consistent with this opinion.
Edith Hayes is severely mentally retarded as a result
of a birth defect. Now 16 years old, she functions at the
level of a four to five year old. Her physical
development, thoug.
The Supreme Court case Gaurav Nagpal v. Sumedha Nagpal addressed custody of a child following divorce proceedings. The key issues were whether the welfare of the child is the paramount consideration in determining custody, and the father's rights to visitation. The Supreme Court upheld the High Court's decision granting custody to the mother, finding the child's welfare was best served by remaining with her. However, the Supreme Court modified the order to provide the father visitation rights twice monthly and longer periods during school holidays. The Court emphasized conciliation efforts should be made to prevent bitter legal fights over children.
This case summary provides an overview of the key details from the document:
1) The case discusses issues of child custody between Gaurav Nagpal and Sumedha Nagpal regarding their child under the Hindu Minority and Guardianship Act and Guardians and Wards Act.
2) The facts state that the parties married in 1996 and had a child in 1997, with the mother allegedly abandoning the child in 1999. Various petitions were filed in different courts regarding custody.
3) The main issues were whether the welfare of the child is the paramount consideration in determining custody, and the court's power to make orders regarding guardianship.
The document discusses the Children Act 1989 and the principles and factors courts consider when making decisions about a child's upbringing. The three principles are: 1) the paramountcy principle where the child's welfare is the top priority; 2) the no order/non-intervention principle where the court only makes orders if necessary; and 3) avoiding delay in decisions. The seven factors courts examine are the child's wishes, needs, potential changes, harm risks, characteristics, parents' capabilities, and available court powers. There is a debate between prioritizing the child's welfare versus autonomy as their rights increase. Overall, the document outlines the framework courts
The court affirmed the adjudication of dependency for the father but remanded to strike an unsupported factual finding from the orders. The court also reversed the requirement for the father to undergo random drug testing as part of his case plan. There was no evidence presented that the father abused drugs or that substance abuse testing was necessary to address the facts leading to the dependency finding. The case plan tasks must be designed to address the individual circumstances of each parent.
This document summarizes a court case regarding whether a child's aunt and uncle had standing to file an independent custody action while a child in need of services (CHINS) case was pending in juvenile court. The court held that the aunt and uncle did have standing under Indiana law to bring the custody action. However, the circuit court should have stayed the custody proceedings and deferred to the juvenile court's exclusive jurisdiction over the CHINS case until it was concluded. Now that the CHINS case has ended, dismissing the custody action for lack of jurisdiction was an error. The case establishes that third parties have standing to seek custody, but circuit courts must defer to juvenile courts when a CHINS case is already pending.
The document outlines key differences between juvenile proceedings and criminal proceedings:
1) Juvenile proceedings focus on rehabilitation rather than punishment and aim to avoid stigma, while criminal proceedings emphasize punishment.
2) Juvenile proceedings provide certain due process rights like notice, counsel, confrontation, and privilege against self-incrimination that were established in In re Gault.
3) Juveniles can be tried in juvenile court under juvenile justice processes or transferred to adult criminal court through waiver, legislative exclusion, or prosecutorial discretion.
1) New York law provides for full disclosure of all material relevant to prosecuting or defending a legal action. School records are generally admissible in trials if authenticated, though privileged family medical information may be redacted.
2) A 1991 case established that school records of a non-party sibling could be discoverable if an expert affidavit demonstrates their potential relevance, such as a genetic link between conditions. Subsequent cases debated whether records of non-party family members require sufficient expert evidence and consideration of privacy.
3) The admissibility of parental and sibling academic records remains decided on a case-by-case basis, balancing relevance, privacy, and whether discovery risks speculative fishing expeditions versus narrowing issues for trial.
This document summarizes a court case regarding the termination of a mother's parental rights. The juvenile court had found the children dependent and neglected due to the mother's inability to care for them and physical abuse by the father. The children were placed in foster care. The state filed to terminate the mother's parental rights for noncompliance with the permanency plan and persistence of conditions. The trial court agreed and terminated the mother's rights. The mother appealed. The appellate court summarized the issues as whether there was clear and convincing evidence of (1) substantial noncompliance with the permanency plan; (2) persistence of conditions; and (3) best interests of the children. The appellate court ultimately reversed the termination due to failure to enter
After public outcry for more oversight and access to juvenile courts, Georgia's legislature passed SB 207 seeking to balance the interests of privacy of children and families involved with Georgia's juvenile courts with the public's interest in transparency and the work of the court.
The EEOC filed suit against Bass Pro Outdoor World and Tracker Marine for violations of Title VII. The EEOC filed a motion for partial summary judgment, arguing that courts can review whether the EEOC attempted conciliation but not how it conducted conciliation. The court denied the EEOC's motion. The court held that under Fifth Circuit precedent, it can review the EEOC's conciliation efforts using a three-part test to evaluate whether the EEOC satisfied its statutory duty to conciliate in good faith. The court also found the EEOC's additional arguments against judicial review of conciliation efforts to be unpersuasive.
Waiver of Privilege for Documents Inadvertently Disclosed During DiscoveryAndrew N. Plasz
The document discusses the law around inadvertent disclosure of privileged documents in Illinois courts. It explains that courts in Illinois follow a three-part test to determine if an inadvertently disclosed document remains privileged: 1) Does the privilege apply to the document? 2) Was the disclosure inadvertent or voluntary? 3) If inadvertent, was the privilege nonetheless waived? It then reviews the key considerations and tests (objective, subjective, balancing) courts use to evaluate each part of this test. The document provides an overview of the complex, unsettled law governing inadvertent disclosure of privileged documents in Illinois.
Dependency and Neglect Proceedings In Juvenile CourtHealth Easy Peasy
This document summarizes Tennessee laws and procedures related to child abuse and neglect referrals and dependency and neglect cases in juvenile court. It outlines who must make a child abuse referral, the process after a referral is made, and key aspects of investigations, custody determinations, permanency planning hearings and more. Key parties in the process are outlined, including the roles of the Department of Children's Services and juvenile court.
West Virginia Supreme Court of Appeals Memorandum Decision No. 18-0230 (Putna...Putnam Reporter
A memorandum decision by the West Virginia Supreme Court of Appeals in the case of Mark Vance Halburn v Dolores J. M. No. 15-0350 (Putnam County 11-D-516) September 9, 2019.
"The Same-Actor Inference: A Look at Proud v. Stone and its Progeny" Employme...C. Scott Schwefel
1) The "same-actor inference" is a legal doctrine where an inference of nondiscrimination exists if the person who terminated an employee is the same person who hired them, and the hiring and firing occurred within a relatively short time span. The logic is that it is unlikely a person would hire someone from a protected class and then fire them for being a member of that class.
2) The doctrine originated in a 1991 Fourth Circuit case where a 68-year old plaintiff was fired 6 months after being hired by the same person. The court found an inference of nondiscrimination in such a situation.
3) While originally applying when the same individual did both the hiring and firing, courts have extended it to
This newsletter summarizes two recent court cases related to reinsurance:
1) The New York Court of Appeals reversed summary judgment in a case involving allocation of an asbestos settlement between a cedent and reinsurers. The court found issues of fact around the reasonableness of the cedent's allocation assumptions.
2) The Second Circuit held that the question of whether a contract clause provides for arbitration is governed by federal common law when the Federal Arbitration Act applies through the New York Convention. The court affirmed that an insurance contract clause allowing medical examinations to determine disability was an arbitration clause.
Supreme Court Agrees to Hear Two Cases on Attorneys' Fees in Patent CasesPatton Boggs LLP
The Supreme Court agreed to hear two cases that deal with awarding attorneys' fees in patent cases. In the first case, Octane Fitness v. ICON Health, the Court will consider whether to lower the standard for determining an "exceptional case" in which fees can be awarded. In the second case, Highmark v. Allcare Health, the Court will determine how much deference appellate courts must give to lower court decisions on awarding fees. These rulings could make it easier for prevailing parties to recoup fees and deter patent holders from filing weak infringement claims.
The Supreme Court of Florida ruled on whether the attorney-client privilege protects a party from having to disclose that their attorney referred them to a treating physician. The court determined that such a disclosure implicates confidential communication between the attorney and client and is therefore protected by attorney-client privilege. This decision quashes the ruling of the Fifth District Court of Appeal, which had ordered the disclosure.
This document summarizes issues related to domestic restraining orders. It discusses how restraining orders are obtained through a two-step process and are often issued on an emergency basis without the respondent being present. It estimates that around 60% of the millions of restraining orders issued annually are unnecessary or false. The document also discusses how restraining orders can negatively impact families and violate due process, as well as problems with gender bias in their issuance and victims sometimes being wrongly accused of abuse.
Homework 5STA 44425440Problem 1Consider two random.docxadampcarr67227
Homework 5
STA 4442/5440
Problem 1:
Consider two random variables X and Y with the following joint probability
mass function:
Y
0 1 4
X 1 0.2 0.05 0.25
3 0.05 0.2 0.25
5 0.15 0 0.05
(a) Find ρ(X,Y );
(b) Find V ar(X + Y );
(c) Find E(2X −
√
Y ).
Problem 2:
If a random variable X has the moment generating function
MX (t) =
pet
1 − (1 −p)et
,
what is E(X)?
Problem 3:
It is known that, if X ∼ Poisson(λ), then its moment generating function is
MX (t) = exp(λ(e
t − 1))
Now suppose X1,X2 are two independent Poisson random variables with pa-
rameters λ1,λ2, respectively, what is the distribution of Y = X1 + X2?
Problem 4:
Suppose X1, . . . ,X36 are independent standard normal random variables, what
is P(X̄ > 1)?
1
Page 228
93 Wn.2d 228 (Wash. 1980)
608 P.2d 635
In the Matter of the Guardianship of Edith Melissa
Maria
HAYES, a minor.
No. 45612.
Supreme Court of Washington, En Banc.
March 27, 1980
[608 P.2d 636]
Page 229
Ries & Kenison, Larry W. Larson, Moses Lake,
Catherine C. Morrow, Karen Marie Thompson, Seattle,
for appellant.
Mental Health Law Project, Judith E. Cohn, Michael
S. Lottman, Norman S. Rosenberg, Washington, D. C.,
Evergreen Legal Services, Linda Potter, Seattle, for
respondent.
HOROWITZ, Justice.
This appeal raises the question whether the Superior
Court for Grant County has authority to grant a petition
for sterilization of a severely mentally retarded person.
Petitioner Sharon Hayes is the mother of Edith
Melissa Maria Hayes, who was born severely mentally
retarded on December 17, 1963. She petitioned the
Superior Court for an order appointing her as the
guardian of Edith's person and specifically authorizing a
sterilization procedure on Edith. The court dismissed the
petition on a motion for summary judgment on the
ground it had no authority to issue an order for
sterilization of a retarded person. Petitioner appeals the
court's conclusion it cannot authorize [608 P.2d 637]
sterilization of a mentally incompetent person. She does
not raise the question whether the court properly denied
her petition to be appointed guardian of Edith's person.
We hold that the Superior Court has jurisdiction to
entertain and act upon a request for an order authorizing
sterilization of a mentally incompetent person under the
Page 230
broad grant of judicial power in Washington Const. art.
4, § 6. We further hold that, in absence of controlling
legislation, the court may grant such a petition in the rare
and unusual case that sterilization is in the best interest of
the retarded person. We therefore reverse the order
granting summary judgment and remanded for further
proceedings consistent with this opinion.
Edith Hayes is severely mentally retarded as a result
of a birth defect. Now 16 years old, she functions at the
level of a four to five year old. Her physical
development, thoug.
The Supreme Court case Gaurav Nagpal v. Sumedha Nagpal addressed custody of a child following divorce proceedings. The key issues were whether the welfare of the child is the paramount consideration in determining custody, and the father's rights to visitation. The Supreme Court upheld the High Court's decision granting custody to the mother, finding the child's welfare was best served by remaining with her. However, the Supreme Court modified the order to provide the father visitation rights twice monthly and longer periods during school holidays. The Court emphasized conciliation efforts should be made to prevent bitter legal fights over children.
This case summary provides an overview of the key details from the document:
1) The case discusses issues of child custody between Gaurav Nagpal and Sumedha Nagpal regarding their child under the Hindu Minority and Guardianship Act and Guardians and Wards Act.
2) The facts state that the parties married in 1996 and had a child in 1997, with the mother allegedly abandoning the child in 1999. Various petitions were filed in different courts regarding custody.
3) The main issues were whether the welfare of the child is the paramount consideration in determining custody, and the court's power to make orders regarding guardianship.
The document discusses the Children Act 1989 and the principles and factors courts consider when making decisions about a child's upbringing. The three principles are: 1) the paramountcy principle where the child's welfare is the top priority; 2) the no order/non-intervention principle where the court only makes orders if necessary; and 3) avoiding delay in decisions. The seven factors courts examine are the child's wishes, needs, potential changes, harm risks, characteristics, parents' capabilities, and available court powers. There is a debate between prioritizing the child's welfare versus autonomy as their rights increase. Overall, the document outlines the framework courts
The court affirmed the adjudication of dependency for the father but remanded to strike an unsupported factual finding from the orders. The court also reversed the requirement for the father to undergo random drug testing as part of his case plan. There was no evidence presented that the father abused drugs or that substance abuse testing was necessary to address the facts leading to the dependency finding. The case plan tasks must be designed to address the individual circumstances of each parent.
This document summarizes a court case regarding whether a child's aunt and uncle had standing to file an independent custody action while a child in need of services (CHINS) case was pending in juvenile court. The court held that the aunt and uncle did have standing under Indiana law to bring the custody action. However, the circuit court should have stayed the custody proceedings and deferred to the juvenile court's exclusive jurisdiction over the CHINS case until it was concluded. Now that the CHINS case has ended, dismissing the custody action for lack of jurisdiction was an error. The case establishes that third parties have standing to seek custody, but circuit courts must defer to juvenile courts when a CHINS case is already pending.
The document outlines key differences between juvenile proceedings and criminal proceedings:
1) Juvenile proceedings focus on rehabilitation rather than punishment and aim to avoid stigma, while criminal proceedings emphasize punishment.
2) Juvenile proceedings provide certain due process rights like notice, counsel, confrontation, and privilege against self-incrimination that were established in In re Gault.
3) Juveniles can be tried in juvenile court under juvenile justice processes or transferred to adult criminal court through waiver, legislative exclusion, or prosecutorial discretion.
This document discusses a custody case involving a father (petitioner) seeking custody of his daughter from his estranged wife (1st respondent) and the child's grandmother. It summarizes:
1) The petitioner left for Canada in 1995, leaving his family behind, and made unsubstantiated allegations against the 1st respondent upon returning.
2) The child has lived with and bonded with her grandmother for over two years.
3) Applying the "best interests of the child" standard, the court determined the child should remain in the custody of her grandmother, as changing custody could psychologically harm the child.
This document discusses declaratory judgments and their use or lack thereof in family court cases involving unaccompanied minors. It notes that declaratory judgments cannot be used to alter or affect existing legal rights and relationships without due process. A declaratory judgment finding abuse, neglect or abandonment of a parent could negatively impact their rights and be grounds for termination of parental rights. As such, a declaratory judgment is generally not appropriate in family court cases where parental rights and the parent-child relationship are at issue. The document also discusses other procedural and ethical requirements around proper representation and protecting the integrity of the court.
Page 228
93 Wn.2d 228 (Wash. 1980)
608 P.2d 635
In the Matter of the Guardianship of Edith Melissa
Maria
HAYES, a minor.
No. 45612.
Supreme Court of Washington, En Banc.
March 27, 1980
[608 P.2d 636]
Page 229
Ries & Kenison, Larry W. Larson, Moses Lake,
Catherine C. Morrow, Karen Marie Thompson, Seattle,
for appellant.
Mental Health Law Project, Judith E. Cohn, Michael
S. Lottman, Norman S. Rosenberg, Washington, D. C.,
Evergreen Legal Services, Linda Potter, Seattle, for
respondent.
HOROWITZ, Justice.
This appeal raises the question whether the Superior
Court for Grant County has authority to grant a petition
for sterilization of a severely mentally retarded person.
Petitioner Sharon Hayes is the mother of Edith
Melissa Maria Hayes, who was born severely mentally
retarded on December 17, 1963. She petitioned the
Superior Court for an order appointing her as the
guardian of Edith's person and specifically authorizing a
sterilization procedure on Edith. The court dismissed the
petition on a motion for summary judgment on the
ground it had no authority to issue an order for
sterilization of a retarded person. Petitioner appeals the
court's conclusion it cannot authorize [608 P.2d 637]
sterilization of a mentally incompetent person. She does
not raise the question whether the court properly denied
her petition to be appointed guardian of Edith's person.
We hold that the Superior Court has jurisdiction to
entertain and act upon a request for an order authorizing
sterilization of a mentally incompetent person under the
Page 230
broad grant of judicial power in Washington Const. art.
4, § 6. We further hold that, in absence of controlling
legislation, the court may grant such a petition in the rare
and unusual case that sterilization is in the best interest of
the retarded person. We therefore reverse the order
granting summary judgment and remanded for further
proceedings consistent with this opinion.
Edith Hayes is severely mentally retarded as a result
of a birth defect. Now 16 years old, she functions at the
level of a four to five year old. Her physical
development, though, has been commensurate with her
age. She is thus capable of conceiving and bearing
children, while being unable at present to understand her
own reproductive functions or exercise independent
judgment in her relationship with males. Her mother and
doctors believe she is sexually active and quite likely to
become pregnant. Her parents are understandably
concerned that Edith is engaging in these sexual
activities. Furthermore, her parents and doctors feel the
long term effects of conventional birth control methods
are potentially harmful, and that sterilization is the most
desirable method to ensure that Edith does not conceive
an unwanted child.
Edith's parents are sensitive to her specia.
Defining the Child – Parent RelationshipEstablishing PatLinaCovington707
Defining the Child – Parent Relationship
Establishing Paternity and Maternity
The Importance of Marriage – Historical Background on Children Born to Unmarried Parents
Historically, children born to unmarried parents were labeled “bastards” or “illegitimate,” and had fewer rights and opportunities than children born to married people.
Illegitimate children are, “persons who are begotten and born out of wedlock”.
Civil and Canon law legitimized the child by the subsequent marriage of the parents.
Protecting children from ‘illegitimacy,” remains a strong justification for the legal presumption that any child born to a married couple is the child of the husband and a legitimate product of the marriage.
Defining the Child – Parent Relationship, cont.
Surnames
Traditionally, children born to married couples are given the father’s surname.
At common law, a child born to unmarried parents was considered the child of no one and had no surname at birth.
The law began to give nonmarital children a right to inherit from their mothers and gave their mothers custody, these children began to receive their mothers surnames, which gradually moved from custom to law (text p. 129)
Gubernat v. Deremer – the court held that the surname selected by the custodial parent, that is the parent that makes the decisions in the best interest of the child’s life, is able to give the child their surname. Note: This rule applies for children under the age of 6 years
Defining the Child – Parent Relationship, cont.
Huffman v. Fisher – the court held that for children between the ages of 6-14, the court should make a determination concerning the child’s ability to state a preference which would keep in line with the best interest of the child
Factors to consider
The length of time that the child has used his or her current name
The name by which the child has customarily been called
Whether a name change will cause insecurity or identity confusion
The motivation of the parents in changing the child’s name
Any embarrassment, discomfort, or inconvenience that may result if the child’s surname differs from that of a custodial parent
Defining the Child – Parent Relationship, cont.
Unmarried Parents: The Contemporary Context
Constitutional and Statutory Reform
Levy v. Louisiana – The Supreme Court held for the first time that children born to unmarried parents are “persons” within the Fourteenth Amendment’s Equal Protection Clause.
The Uniform Parentage Act (UPA) Section 202 states, “a child born to parents who are not married to each other has the same rights under the law as a child born to parents who are married to each other.”
Establishing Paternity
The PRWORA [Personal Responsibility and Work Opportunity Reconciliation Act of 1966] resulted in three developments for the establishment of paternity
A change in social perspective
During the 1980’s, there was a growing focus on poverty and other societal problems often associated with single parenth ...
The document analyzes the 1989 Tennessee Court of Appeals case Childress v. Madison County, which held that a parental pre-injury liability waiver executed on behalf of a child was unenforceable. It argues that developments in Tennessee and U.S. constitutional law regarding parental decision-making authority, as well as changing precedent in other states, suggest the Childress rule is outdated. The document maintains that Tennessee courts should now enforce parental pre-injury liability waivers under the same standards as any other liability waiver, in recognition of parents' constitutionally protected authority to make important decisions for their children.
This document discusses the ethical duties of attorneys serving as Guardians ad Litem (GALs) or attorneys for children. It outlines the debate around whether the GAL represents the child's best interests or acts as the child's attorney. The document also summarizes Kansas law changes that clarify the GAL represents the best interests of the child while a separate attorney may be appointed to represent the child. The ethical duties of GALs and child attorneys are the same as any other attorney, such as providing competent representation and maintaining client confidentiality.
This chapter discusses Supreme Court cases that have shaped the due process rights of juveniles. It summarizes key cases such as Gault, which established juveniles' right to counsel and privilege against self-incrimination, and McKeiver, which found no right to jury trials for juveniles. The chapter also reviews rights of juveniles in school settings as well as their rights regarding search/seizure, curfews, and legal drinking ages.
This document provides an overview of legal issues related to domestic violence and child custody. It discusses how custody and visitation arrangements can inadvertently subject abused women and children to further harm. The document notes that batterers frequently seek custody to maintain control over their victims. It also discusses common myths about domestic violence and child custody, and notes that custody decisions should consider how living with a batterer impacts safety and the best interests of the child. The resource contains tips, summaries of state laws, and additional resources on this topic.
The document discusses three Supreme Court cases relating to the Eighth Amendment and equal protection under the law:
1) Glossip v. Gross - The Court upheld Oklahoma's use of lethal injection, but the first drug may not prevent pain from the subsequent drugs. This allows unequal treatment of inmates across states.
2) Brumfield v. Cain - The Court found an inmate could challenge a finding that he was not intellectually disabled, but there is no agreed definition for this. Determining disability was put to a majority vote.
3) Davis v. Ayala - The Court ruled against a claim of racial bias in jury selection, but exclusion of jurors could still be an "harmless error." It
The eggshell skull principle holds that a defendant must take their victim as they find them. This means that if a defendant's negligent actions cause injury to someone with a pre-existing condition, the defendant is still liable for exacerbating or aggravating that pre-existing condition. The summary examines three legal cases that demonstrate different outcomes under this principle, showing that employers may need to provide compensation if a workplace injury is separate from a pre-existing condition but not if the injury is a normal progression of that condition. Employers are advised to thoroughly research employee injuries to determine if a pre-existing condition was a factor.
07052015 when the empirical base crumbles- the myth that open dependency proc...screaminc
The document summarizes issues with two empirical studies used to justify opening child dependency court proceedings to the public.
1) The researcher who designed the influential Minnesota study admitted the study had significant methodological flaws, including an advisory committee prohibiting interviews of abused children and their parents due to risk of harm, despite allowing children to testify in open court. No psychologists were consulted on potential harm to children either.
2) Recent testimony from the researcher revealed other flaws, like only investigating "extraordinary harm" without defining the term, potentially underestimating trauma. Government agencies selecting who to survey also introduced bias.
3) The studies are increasingly being challenged and may not reliably show that open proceedings do not psychologically damage
Certori of lower court example of format bring rissler petitionedscreaminc
The document discusses the benefits of exercise for mental health. Regular physical activity can help reduce anxiety and depression and improve mood and cognitive functioning. Exercise causes chemical changes in the brain that may help protect against mental illness and improve symptoms.
The document summarizes child welfare initiatives in Georgia, including:
1) Efforts by the Georgia Court Improvement Project (CIP) to improve legal representation through standards for parent and child attorneys, legal trainings, and a method for quality assurance.
2) Data collection on safety and permanency measures by the CIP and publishing the data online.
3) CIP projects like summits around the state, a "Cold Case Project" reviewing long-term foster care cases, and a legal training academy for attorneys.
4) Collaboration between the CIP and state agency on issues like improving permanency and addressing barriers to achieving permanency.
Juvenile justice delinquency prevention and treatment programs rfp (3)screaminc
The Criminal Justice Coordinating Council is seeking applications from county commissions in Georgia for up to $100,000 in funding to support juvenile justice delinquency prevention and treatment programs from December 2014 to August 2015. Eligible applicants must serve youth involved in the juvenile court system and implement evidence-based programs to reduce recidivism and prevent deeper system involvement. Applications are due by November 7, 2014.
The document discusses the use of requests to admit in civil discovery under Section 9-11-36 of the Georgia Code. Requests to admit involve asking the other party to admit or deny statements of fact or opinions to help prove a point in the case. If a party denies a request but cannot support their denial, the requesting party can file a motion and the court may order the matter admitted or require an amended answer. A party can also recover expenses including attorney's fees if they prove the matter denied in a request. Admissions are conclusively established unless withdrawn or amended by the court, which requires showing such change will help the merits and not prejudice the requesting party.
Motion for new trial -clu 12-19_14_no_51_14screaminc
This document provides a summary of case law updates from the week ending December 19, 2014 from the Prosecuting Attorneys’ Council of Georgia. It discusses cases related to motions for new trial, juvenile probation revocation, search and seizure/implied consent, forfeiture by wrongdoing, and jurisdiction/supersedeas. The document provides brief summaries of the facts, issues, and holdings of each case.
This brief was submitted by the Georgia First Amendment Foundation as an amicus curiae in support of reversing the lower court's ruling. It argues that (1) personnel records, like Deputy Glisson's file, must be disclosed under the open records act and are not exempt just because they relate to a pending investigation, and (2) 911 tapes should be treated like initial police reports which are disclosable regardless of any investigation under the law. The brief provides background on the case, outlines the legal arguments, and urges the Supreme Court to reverse to ensure transparency as intended by the open records act.
This document provides tips and procedures for appealing deprivations and terminations of parental rights. It discusses the importance of preserving the trial record for appeal purposes. It outlines five tips for a clean trial record including pre-trial motions, clear objections, proffering excluded evidence, preserving miscellaneous issues, and reviewing the final order. The document then discusses filing a motion for a new trial within time limits and possible grounds. It provides an overview of the appeal process for deprivations and terminations, including requirements for briefs and case law that may be helpful.
This document is a bill being considered by the Georgia legislature to reform the state's juvenile justice system. It proposes substantial revisions to Title 15 of Georgia law relating to juvenile court proceedings. The bill aims to modernize provisions around dependency, delinquency, and children in need of services cases. It seeks to protect communities, impose accountability, provide treatment and rehabilitation, and equip juvenile offenders to live responsibly. If passed, the bill would enact comprehensive juvenile justice reforms recommended by the governor's council.
The document discusses adolescent brain development and its implications for foster youth transitioning to adulthood. It notes that adolescence is a critical period for brain growth, especially in areas related to decision making and impulse control. During this time, youth can overcome past trauma and gain skills to become independent adults. Extended foster care can provide support during this critical time by allowing youth to practice adult skills with supportive adults, as children in intact families do. Keeping youth in foster care until age 21 better equips them for adulthood by capitalizing on the developmental opportunities in adolescence to recover from trauma and become self-sufficient.
This document provides tips and procedures for appealing deprivations and terminations of parental rights. It discusses the importance of preserving the trial record for appeal purposes. It outlines five tips for a clean trial record including pre-trial motions, clear objections, proffering excluded evidence, preserving miscellaneous issues, and reviewing the final order. The document then discusses filing a motion for a new trial within time limits and possible grounds. It provides an overview of the appeal process for deprivations and terminations, including requirements for briefs and case law that may be helpful.
This document contains the Uniform Rules for Juvenile Courts in the State of Georgia. It outlines rules related to court officers and personnel, court records, commencement of proceedings, filing petitions, discovery and motions, detention hearings, bond hearings, arraignment hearings, adjudicatory hearings, dispositional hearings, juvenile traffic offenses, and courts of inquiry. The document is divided into 15 sections covering various procedural and administrative aspects of juvenile courts in Georgia.
This Supreme Court of Georgia case involves Veasa Bun appealing his convictions of malice murder and other crimes in connection with the shooting death of a sheriff's deputy. Bun received a sentence of life without parole plus 70 additional years. He argued this sentence constituted cruel and unusual punishment as a juvenile. The court affirmed the sentence, finding the evidence supported the convictions and precedent has established that life without parole sentences for juveniles can be constitutional. The court also rejected Bun's claim of ineffective assistance of counsel.
This document outlines the procedures and legal standards for deprivation proceedings in juvenile court in Georgia. It discusses pleading requirements, service of petitions, parties to the proceedings, appointment of guardians, the right to counsel, recordation requirements, preliminary protective custody, detention hearings, adjudicatory hearings, and the clear and convincing evidence standard required to prove deprivation.
How to file motion for new trial 07142015screaminc
This document provides information about the Office of Behavioral Health Services (OBHS) within the Georgia Department of Juvenile Justice. The OBHS manages behavioral health services for youth in DJJ facilities. Within 2 hours of admission, all youth receive screening for mental health issues, substance abuse, and suicide risk. Approximately 43% of screened youth are referred for further mental health assessment. The OBHS provides treatment including individual and group counseling, medication management, and family counseling to youth with identified needs. Evidence-based treatment models used include A New Freedom, The Seven Challenges, Trauma-Focused Cognitive Behavioral Therapy, and Collaborative Assessment and Management of Suicidality.
Narcissistic personality disorder and the dsm–v --miller widigercampbell20101screaminc
The document discusses three issues regarding the classification of narcissistic personality disorder in the DSM-V: 1) whether NPD should be excluded from the DSM-V as proposed, given research supporting its clinical relevance and negative outcomes; 2) the need to assess both grandiose and vulnerable variants of narcissism; and 3) how to characterize narcissistic traits in a dimensional model. The authors argue that excluding NPD lacks justification compared to other retained disorders and that the proposal does not provide clear empirical support for its decisions.
Np v state_of_georgia_usa_statement_of_interestscreaminc
This document is a statement of interest filed by the United States in a lawsuit regarding the right to counsel for juveniles in delinquency proceedings in Georgia. The United States argues that juveniles have a constitutional right to meaningful legal representation, including an attorney with adequate resources and training to advocate for the juvenile's interests. The United States also asserts that courts must ensure any waiver of counsel by a juvenile is knowing, intelligent, and voluntary, which requires consultation with an attorney.
This document summarizes key changes between the DSM-IV and DSM-5 diagnostic criteria and classifications. Some notable changes include: renaming intellectual disability and removing subtypes of schizophrenia; adding social communication disorder and disruptive mood dysregulation disorder; modifying the criteria for autism spectrum disorder, bipolar disorder, and major depressive disorder; removing the bereavement exclusion for major depression; and consolidating language, social anxiety, and specific phobia criteria.
This document is a form for documenting open records requests. It collects information about the requester including their name, address, contact details. It documents the date the request was received, how it was delivered, and who is responding. It asks for details on the type of records requested, any exempt records, and dates for informing the requester of availability and providing records. It also collects statistics on the number of documents/pages provided, copies, staff hours to respond, and any issues fulfilling the request.
1. Recent Child Welfare Cases
From Georgia’s Appellate Courts
Georgia Parent Attorney Conference
Atlanta, Georgia
May 8, 2007
Judge Tom C. Rawlings
Juvenile Courts, Middle Judicial Circuit
P. O. Box 5746
Sandersville, GA 31082
(478) 553-0012
tom@sandersville.net
www.tomrawlings.com
2. Recent Child Welfare Cases
From Georgia’s Appellate Courts
Judge Tom C. Rawlings
Juvenile Courts, Middle Judicial Circuit
P. O. Box 5746
Sandersville, GA 31082
(478) 553-0012
tom@sandersville.net
www.tomrawlings.com
TABLE OF CONTENTS
Introduction 3
Court’s Jurisdiction and Authority 4
Custody or Deprivation? 4
Court’s Contempt Powers 5
Court’s Authority Over Placement 6
The Parties in Court 7
Service of Process and Right to Be Present 7
The Right to Representation 8
The Newest Wrinkle: They Have a Right to WHAT!!!??? 10
Deprivation and Termination of Parental Rights 11
Procedural Snags 12
Deprivation 12
Present Deprivation 13
Deprivation Must Harm Child 14
Unexplained Injuries 15
Likely to Continue 16
Causing Harm 18
Voluntary Surrender 19
A Special Case: Mental Limitations 20
Reunification 22
Placement 22
Legitimation 24
Evidentiary Issues 26
Mental Health Privilege 26
Child Hearsay and Confrontation 27
Miscellaneous Points 28
Conclusion 29
2
3. Great cases like hard cases make bad law. For great cases are called
great, not by reason of their real importance in shaping the law of the
future, but because of some accident of immediate overwhelming interest
which appeals to the feelings and distorts the judgment. These immediate
interests exercise a kind of hydraulic pressure which makes what
previously was clear seem doubtful, and before which even well settled
principles of law will bend. Northern Sec. Co. v. United States, 193 U.S.
197, 400-401 (U.S. 1904) (Holmes, J., dissenting)
Introduction
This paper is intended to bring your attention to new child welfare cases from
Georgia’s appellate courts. Ideally, in doing so one might be able to point out certain
trends as well as certain rock-solid principles on which practitioners could rely in
arguing cases in juvenile and appellate courts or giving advice to clients. But child
welfare cases -- that is, deprivation and, to some extent, delinquency and dependency
cases, are among the most fact-intensive around. And, like the “great” cases to which
Justice Holmes referred, removing children and severing their relationship with their
parents “appeals to the feelings and distorts judgment.” As our own appellate courts
often say:
“There is no judicial determination which has more drastic significance
than that of permanently severing a natural parent-child relationship. It
must be scrutinized deliberately and exercised most cautiously. The right
to raise one’s children is a fiercely guarded right in our society and law,
and a right that should be infringed upon only under the most compelling
circumstances.”
In the Int. of M.A., 280 Ga. App. 854 (2006) (Internal citation and punctuation
omitted). In the end, giving an update on child welfare cases is more akin to
telling war stories than reading tea leaves.
With those reservations in mind, this paper will attempt to address the
most recent cases touching on the juvenile court’s jurisdiction and authority, the
3
4. rights of the parent, service of process, deprivation, nonreunification,
termination of parental rights, and appellate issues.
The Court’s Jurisdiction and Authority
The juvenile court is a court of limited jurisdiction, and it therefore is
challenged to prove it has authority to take action. In Re: Tidwell, 279 Ga. App.
734 (2006) Recent challenges to the juvenile courts’ authority primarily have
come in three areas: (1) a complaint that the matter is really a custody action;
and (2) a dispute over the court’s authority to hold persons in contempt; and (3) a
dispute regarding the Court’s placement authority.
1. Custody or Deprivation?
A recurring theme in the appellate cases is whether the juvenile court improperly
considered as a deprivation case what should have been a custody case in Superior
Court. In one such recent case the mother complained that DFCS was improperly
involved as a pretext for giving custody to the other parent. The Court of Appeals held:
“The juvenile court has exclusive original jurisdiction over a child alleged
to be deprived. We have held, however, that if the petition fails to make
valid allegations of deprivation . . . , the matter is not a deprivation
proceeding within the jurisdiction of the juvenile court, but is a custody
dispute that falls within the jurisdiction of the superior court. We further
cautioned juvenile courts to exercise great caution when entertaining
deprivation proceedings brought by a non-parent to obtain custody from a
parent. We must evaluate a deprivation petition on its own merits,
considering the specific facts of the case, in determining whether it is in
fact a custody matter for the superior court.
Where there are unchallenged, valid allegations of deprivation and no
evidence that the parents were engaged in any custody dispute prior to the
instances of deprivation, we cannot say that the deprivation proceeding
was a disguised custody matter. Accordingly, the juvenile court properly
exercised its jurisdiction over the deprivation proceeding.
In the Interest of D.T., ___ Ga. App. ___ (A06A1815 decided 3/20/07).
4
5. If the child is alleged to be deprived, it does not seem to matter that the Court
may be asked to give custody to the other parent. In a 2004 case, DFCS brought a
deprivation petition against a mother alleging the existence of a filthy home that was
unsafe for five-month-old and asked that temporary custody be granted to the father.
Despite the fact that DFCS asked for transfer of custody to the other parent, this case
was not a disguised custody matter. In the Interest of T. L., 269 Ga. App. 842 (2004).
Adding more recent authority to this distinction is In the Int. of K.L.H., 281 Ga. App.
394(2006). There, a putative father brought a deprivation proceeding against a
custodial mother, and the court found the child deprived and awarded custody to the
father and his mother. The mother appealed, but she did not claim her child was not
deprived; rather, she claimed that the deprivation proceeding was a “disguised custody
dispute.” The Court rejected her claim, holding that the mere fact that the case involved
two parents did not make it prima facie a custody dispute. Instead, the undisputed facts
supported the trial court’s finding that the case involved child deprivation.
2. The Court’s Contempt Power
Perhaps the most interesting recent case touching on the juvenile court’s
authority is In Re: Tidwell, 279 Ga. App. 734 (2006), in which Judge Billy Waters
of Newton County tried to hold DFCS caseworkers in contempt for refusing to
remove a child from a home he disapproved. The Court of Appeals reversed his
decision. Despite some very strange and questionable dicta in that case, perhaps
its central lesson is that a juvenile court order holding someone in contempt must
clearly show on its face why the Court has jurisdiction over the person:
“A juvenile court is a court of special and limited jurisdiction, and its
judgments must show on their face such facts as are necessary to give it
jurisdiction of the person and subject matter. [Cits.] If the order of a
juvenile court fails to recite the jurisdictional facts, the judgment is void.”
5
6. Tidwell, 279 Ga. App. at 694. The Court also held that once the juvenile court
commits a child to the custody of DFCS, it cannot dictate where DFCS must place
the child or, in this case, prohibit DFCS from making a certain placement.
While the juvenile court’s decision to hold an individual in contempt was
reversed in Tidwell, the juvenile court does have contempt power. In Re: Liles,
278 Ga. App. 496 (629 SE2d 492) (2006) upheld the juvenile court’s order
finding a parent in contempt for refusing to bring his child to visits with the
probation. Key to that decision was the fact that the Court had placed the parent
under a protective order pursuant to OCGA § 15-11-5, and the protective order
clearly spelled out the parent’s duties.
The Court of Appeals has also recently re-affirmed the power of the
juvenile court to hold a person in criminal contempt. In re Jefferson, ___ Ga.
App. ___ (A06A2253 decided 3/30/07). In that case, the juvenile court cited for
criminal contempt a public defender who “overly-protested” the court’s rulings.
The Court of Appeals held that, “As a constitutional court, the juvenile court was
authorized both to adjudicate the matter and imposed punishment.”
3. The Court’s Authority Over Placement
In addition to Tidwell, supra, another blow to the Court’s authority to
order DFCS to place children in a certain home was the Supreme Court’s decision
In the Int. of A.N, 281 Ga. 58(2006). As that case noted, “It is a longstanding
rule that a trial court may not order that legal and physical custody of a deprived
child be divided between DFACS and some other party unilaterally chosen by the
6
7. court.” The A.N. case completely destroyed any notion that the juvenile court has
authority over where DFCS places a child. 1
To counteract the effects of the A.N. decision, the Legislature this session
passed H.B. 1532
. H.B. 153 specifies that, except in emergency cases, before
DFCS changes a foster child’s placement the agency must inform the court and
counsel. The court or a party can request a hearing to determine whether the
move is appropriate. While the juvenile court is required to defer to the agency, it
may have some discretion to block a move that is completely inappropriate.
Unless vetoed by the Governor, the new statute will be codified at OCGA § 15-11-
55 and will take effect July 1, 2007.
The Parties In Court
1. Service of Process and Right to Be Present
Several recent cases have addressed whether parents have been properly served
and brought into court to face deprivation or termination of rights petitions. Take a look
at In the Int. of C.S., 279 Ga. App. 831 (632 SE2d 665) (2006), a termination of parental
rights case. There the legal father complained on appeal that he was not personally
served pursuant to OCGA § 9-11-4(c). At the time of the trial he was incarcerated in
Tennessee, and the petition and summons were sent by certified mail. The juvenile
court found he personally acknowledged receipt, and the Court of Appeals ruled that he
had nothing to complain about. However, the Supreme Court granted certiorari in
S06G1802 to determine whether delivery by certified mail is sufficient in a termination
of parental rights case. The Court has referred the parties to OCGA §§ 15-11-39.1 and 15-
11-96.
1
One wonders why DFCS is so insistent that it exercise this authority alone, when so doing makes the agency, and
not the Court, fully responsible if something happens to the child while the child is in the placement.
2
Available at http://www.legis.state.ga.us/legis/2007_08/sum/hb153.htm
7
8. Two other fairly recent cases involved whether incarcerated parents should have
been brought to court. In a Fulton County case, the incarcerated father requested
counsel, which was not provided, nor was he brought to the deprivation hearing. The
Court of Appeals held that “[b]ecause the father was denied an opportunity to be heard,
constitutionally or as provided by statute, the deprivation proceedings at issue can be
but a nullity.” In the Interest of A.J., 269 Ga. App. 580 (2004). The failure to at least
provide the absent father with an attorney, however, seems to be key. For example, in
In the Int. of S.R.B., 270 Ga. App. 466 (2004), the father’s request for transport from
prison was denied but he was represented by counsel at the hearing. The Court there
held: “Due to his own inability to conform to the law, he was unable to avail himself of
the opportunity to appear in person; however, it is undisputed that he was represented
in all the parental termination proceedings by counsel who appeared in his stead. We
know of no constitutional entitlement mandating the father's right to appear personally
at the termination hearing." Id.
2. The Right to Representation
More recent cases have confirmed that the court needs to make sure indigent
folks are represented by counsel. That duty includes making sure that the record
demonstrates whether a person is indigent. In 2004, the Court vacated a juvenile court
ruling because nothing in the record demonstrated whether the Court had checked into
the parent’s qualification for indigent counsel. “It was incumbent on the court to make
inquiry into appellant's financial status and properly determine whether she was
indigent.,” the Court held, “The trial court failed to exercise its affirmative duty of
determining on the record whether [the mother] exercised reasonable diligence in
attempting to retain trial counsel.” In the Interest of A. M. A., 270 Ga. App. 769 (2004).
8
9. Despite the rule in A.M.A., the Court of Appeals recently found harmless a
juvenile court’s failure to make the determination of reasonable diligence. In a
termination of parental rights case, In the Int. of Z.K., ___ Ga. App. ___ (A07A0253
decided 4/19/07), the Court held that a father had to show not only the denial of his
right to counsel but also harm resulting from it. Because the father failed to show how
having counsel might have changed the result, he was not entitled to reversal. That case
was not fully concurred in by the entire three-judge panel and is, therefore, physical
precedent only.
When a parent in a deprivation or termination case has an attorney, he or she is
entitled to effective assistance. “While termination of parental rights cases are more
civil in nature than criminal, parents facing termination of their rights have been
afforded some of the protections to which criminal defendants are entitled. This
includes providing to indigent parents effective representation at all stages of any
proceeding involving the termination of their parental rights.” In the Int. of E.G., ___
Ga. App. ___ (A06A1944 decided 3/27/07). Unfortunately for the aggrieved parent in
E.G., no evidence showed the attorney’s performance sufficiently deficient to merit
reversal.
While the Constitution may state that folks have the right of self-representation,
that right doesn’t necessarily extend to the mentally incompetent. Take a look at In the
Interest of B.B., 268 Ga. App. 858, (2004). There, the court upheld the assignment of
an attorney to a parent where the record showed she “has multiple mental disorders,
including delusional disorder, psychotic disorder, and depression. In addition, an expert
testified that [the parent] confused fantasy with reality, was unable to make rational
judgments, was incapable of assisting in her defense, was unable to knowingly or
9
10. voluntarily waive her right to represent herself, and was incapable of independently
handling an appeal.” Id.
3. The Newest Wrinkle: They Have the Right to WHAT!!!???
Winning the award for the most radical departure from tradition is a recent
delinquency case in which the Court of Appeals has held that the parents of a child
adjudicated delinquent have independent rights to their own attorney, to participate in
the proceedings and ask questions and cross-examine witnesses, and to appeal. In the
Int. of J.L.B., 280 Ga. App. 556 (2006). In this case, J.L.B. was adjudicated delinquent
for sexual battery and was put on probation and ordered to drug and alcohol evaluation.
The parents filed their own pro se appeal on their own behalf, challenging the
sufficiency of the evidence.
The Court of Appeals refused to dismiss the appeal because it found that “A
child’s parents are necessary parties to all legal proceedings involving their child,
including delinquency actions.” Id. Since parties are entitled to appeal, and to
represent themselves on appeal, there was no cause to dismiss the appeal.
Far from simply allowing these parents to appeal their child’s adjudication,
however, the Court went on to find the parents have the rights:
to be present and to be heard during the proceedings, to be represented by
counsel at all stages of the proceedings, to present evidence and cross-
examine adverse witnesses, to waive recordation of the proceedings, n10
and to petition the court to modify, vacate, or set aside an order. If the
parents are indigent, the court must appoint counsel to represent the
parents and their child.
Id., Slip op.
If there is a case that exemplifies the need to revise the Juvenile Code, J.L.B. is it.
The Court based the finding that parents are “parties” to a delinquency action on the fact
10
11. that they and “other necessary parties” must be served with the summons. The Court
then extrapolated that finding to turn the parents into the types of “parties” who, under
OCGA §§ 15-11-6 and 15-11-7, have the right to free attorneys and to question witnesses.
In making its determination the Court relied on cases such as D.C.A. v. State, 135 Ga.
App. 234, 235 (1975), which only addresses whether parents can be sequestered during a
delinquency hearing involving their child; In the Int. of A. J., 269 Ga. App. 580 (2004),
the termination of parental rights case cited above involving the father’s right to be
present; and Sanchez v. Walker County Dep't of Family & Children Services, 237 Ga.
406 (1976), a deprivation case. Presumably, under the Court of Appeals’ ruling in J.L.B.
the parents of a delinquent child who was acquitted or merely put on unsupervised
probation could, as parties to the case, appeal the court’s failure to lock their child in the
YDC.3
Deprivation and Termination of Parental Rights
In recent years, the Court of Appeals has appeared less than consistent in its
treatment of juvenile court findings of deprivation and orders terminating parental
rights, which generally require a finding of deprivation caused by the parent that is
likely to continue and to harm the child. See OCGA §15-11-94. Recent cases do not
clarify these areas of law; however, it may be helpful to highlight some recent decisions
regarding deprivation as well as the “likely to continue” and “causing harm” aspects of
the termination statute.
1. Procedural Snags
3
The foregoing paragraph is a personal rant and should be taken as such. No disrespect toward the fine Judges and
staff of the Court of Appeals is intended or should be inferred. Attempting to determine which statutory provisions
in our muddled Juvenile Code apply to delinquency cases and which apply to deprivation cases is nearly impossible,
and the Court should not be faulted for applying these provisions to both types of cases.
11
12. Before launching into recent substantive termination and deprivation cases, a few
recent issues involving procedural snags should be highlighted.
For example, before a deprivation or TPR petition can be filed it must be
endorsed by the Court as being in the child’s best interests. But in In the Int. of V.D.S,
___ Ga. App. ___ (A07A0458 decided 3/7/07), the Court held that the “lack of a
written endorsement specifically making this determination does not render the petition
or subsequent proceedings thereon void where the purpose of the endorsement
requirement to assure that the court, or someone acting for the court, has made such a
determination before proceedings are commenced has been substantially complied with
or satisfied by implication” (Cits. And internal punctuation omitted).
One should also remember that juvenile court proceedings must be recorded or
the recording explicitly waived. In one recent case, the juvenile court found the child
deprived at a 10-day hearing based in part on the court’s taking judicial notice of
evidence introduced at the 72-hour hearing. Unfortunately, the 72-hour hearing had
not been recorded. Even though the defense attorney did not object to the court’s taking
judicial notice of the prior proceeding, the Court of Appeals reversed the finding because
there was no evidence the parent waived recording of the 72-hour hearing. In the Int. of
D.P, ___ Ga. App. ___ (A07A0419 decided 3/22/07).
2. Deprivation
Deprivation must be present, and it must cause harm. These two factors are
often overlooked, but recent cases have reinforced their importance.
12
13. a. Present Deprivation
Key to a finding of deprivation in either a deprivation hearing or a termination of
rights hearing is a showing of present deprivation. “Evidence of past unfitness, standing
alone, is insufficient to terminate the rights of a parent in her natural child; clear and
convincing evidence of present unfitness is required.” In the Int. of M.A., 280 Ga. App.
854 (2006). There, the father who tried to burn down the family’s house was no longer
around; the mother had complied with the case plan, visited with the children,
completed her parenting classes, and lived in the same home for two years.
In the Int. of R.C.M, ___ Ga. App. ___ (A07A0399 decided 4/5/07) addresses in
the context of a termination of parental rights case the point that deprivation must be
present deprivation. The normal four-factor test for terminating a parent’s rights is to
show the child is deprived; that the parent caused the deprivation; that the deprivation
is likely to continue; and that the continued deprivation is likely to harm the child.
OCGA § 15-11-94. Myriad cases, including very recent ones, hold that evidence of
unappealed deprivation orders is sufficient to prove deprivation for purposes of a TPR.
For example: “Where a deprivation order is not appealed, the parents are bound by the
finding of deprivation for purposes of the termination hearing.” In the Int. of M.J.L.,
___ Ga. App. ___ (A06A2369 decided 3/13/07).
R.C.M, however, seems to blow away that standard analysis. Chastising the lower
court for basing a finding of deprivation on its prior, unappealed deprivation orders in
the case, the Court of Appeals wrote:
This truncated analysis overestimates the effect of unappealed deprivation
orders. An unappealed order adjudicating a child deprived does indeed
bind a parent to the finding that at the time of the order the child was
deprived for the reasons given in the order. And where the Department
13
14. shows that the conditions upon which an earlier finding of deprivation was
based still exist at the time of the hearing on the termination petition, the
fact that the parent did not appeal the earlier deprivation order will
preclude the parent from challenging the allegation of current deprivation.
[Cits]. But OCGA § 15-11-94 (b) (4) (A) requires the juvenile court to
determine whether `the child is a deprived child’- that is, at the time of the
hearing on the petition for termination of parental rights - not whether the
child has ever been a deprived child. In this case, the father's inability that
supported earlier the initial finding of deprivation, that is, his absence due
to incarceration, no longer existed at the time of the hearing on the
termination petition. As a result, the father's failure to appeal the earlier
deprivation orders did not preclude him from challenging the juvenile
court's finding that the children were deprived at the time of the hearing
on the termination petition. We remind all petitioners, juvenile courts, and
our brethren on this Court to give due consideration to all the statutory
elements in this process and not to presume that a child is deprived based
on the faulty premise, `once deprived, always deprived.’
Under this analysis, it will not be enough to simply show that the juvenile court earlier
found the child deprived. Evidence also must be presented showing that nothing has
changed.
b. Deprivation must harm child
As to the second issue, that the deprivation must harm the child, the recent case
of In the Int. of D.S, ___ Ga. App. ___ (A06A1992 decided 2/28/07) is instructive.
There the Court reversed a finding of deprivation because no evidence showed a link
between the stepfather’s harsh criticism and “ranting” and the child’s emotional
problems. Judge Ruffin, who authored that case, also recently concurred in another
case because he found there that the mother’s serious emotional difficulties could be
considered to severely impact her infant without an explicit showing of harm to the
infant. In the Int. of M.D., ___ Ga. App. ___ (A06A1686 decided 3/1/07).
The bottom line is that a finding of deprivation often turns on facts. For example,
in the past a mother’s drug use been held not to show deprivation where the mother
merely left her child strapped in the car seat in the hotel parking lot while she smoked
14
15. marijuana in the room (In the Interest of D.E.K., 236 Ga. App. 574, 576 (1999). But in
another case the Court held that “it is a fair inference that use of cocaine by a parent has
an adverse effect on a minor child.” In the Int. of J.L., 269 Ga. app. 226 (2004).
A finding of deprivation also requires proof that the lack of parental ability is an
ongoing, chronic issue. “Proof of unfitness must be shown by clear and convincing
evidence; this standard recognizes the importance of the familial bond and `helps
eliminate the risk that a factfinder might base his determination on a few isolated
instances of unusual conduct or idiosyncratic behavior.’” In the Int. of C.L.Z., 283 Ga.
App. 247 (January 9, 2007). In C.L.Z., the appellate court found that a single reported
instance of the guardian yelling at the child, without evidence the child was emotionally
injured or that the guardian had some ongoing inability to control her emotions, did not
prove deprivation. Compare In the Int. of K.J., 268 Ga. App. 843, 844 (2004), in which
the court held that a single beating several months prior to the hearing was so severe
that it raised reasonable concerns about the mother’s parenting ability.
c. Unexplained Injuries
It bears repeating, as the Court does in In the Interest of S.Y., ___ Ga. App. ___
(A07A0271 decided 3/14/07), that a finding of deprivation does not require determining
“whodunit.” There the Court noted that although the evidence did not demonstrate how
the child contracted venereal warts or sustained a head injury, the juvenile court was
entitled to conclude the child was deprived. "The juvenile court's primary responsibility
is to consider and protect the welfare of children whose well-being is threatened.
Unexplained injuries may constitute evidence of deprivation. Further, although there is
no evidence that the mother was directly responsible for [the child’s] venereal warts, the
evidence supports the conclusion that the child suffered unexplained sexual abuse while
15
16. in the mother's care, and the juvenile court was authorized to find that the unexplained
abuse was the result of the mother's inability to protect the child.” (Citation and
internal punctuation omitted).
3. Likely to Continue
In its language, the Court of Appeals often suggests that the juvenile court is
better at determining the credibility of a parent’s promises to protect a child from future
deprivation. For example, in In the Int. of A. B., 283 Ga. App. 131 (Dec. 17, 2006), the
Court found deprivation likely to continue where a mother, whose husband was accused
of molesting the children, continued to love him, called him 300 times when he was in
jail on the sexual abuse charges, and appeared to place her relationship with him above
her children’s welfare. "[I]n determining whether the children's deprivation is likely to
continue, the juvenile court may consider the parent's past conduct. Furthermore, the
decision as to a child's future must rest on more than positive promises which are
contrary to negative past fact.” In the Int. of J.D., 280 Ga. App. 861 (2006). A juvenile
court may consider the parent's past conduct in deciding whether a child's deprivation is
likely to continue. In the Int. of E.J., ___ Ga. App. ___ (Case No. A07A0689 decided
4/6/07). In the Int. of M.R., 282 Ga. App. 91 (2006), emphasized that “the juvenile
court, not [the appellate] court, determines whether a parent's conduct warrants hope of
rehabilitation, and it also judges the credibility of appellant's good intentions."
That “laissez faire” principle won’t prevent the Court from reversing a ruling it
feels was based on insufficient facts, however. Recently, the Court dealt with the
termination of the rights of a mother who was incarcerated for vehicular homicide. Her
current imprisonment was the only indication that her child’s deprivation might
continue, and her record before her conviction had been clean. “[C]ontrary to the
16
17. finding of the juvenile court,” the Court held, “there is not clear and convincing evidence
that the cause of the deprivation is likely to continue and will not be remedied.
Imprisonment alone does not automatically authorize a termination of parental rights
premised upon parental unfitness; there must be circumstances in aggravation." In the
Int. of J.A.W., 281 Ga. App. 545 (2006) (internal punctuation and citation omitted).
While a single conviction and incarceration for a vehicular homicide might not
show that deprivation will not be remedied, a father’s numerous VCGSA convictions and
failure to regularly support seven other illegitimate other children does! In the Int. of
T.G.Y., 279 Ga. App. 449, 471 (631 SE2d 467) (2006).
Whether a parent has had a fair opportunity to complete a case plan may also
factor strongly into the “likely to continue” analysis. In R.C.M., supra (A07A0399), the
children were put in foster care when the father was incarcerated for two years on
charges of possession of a firearm by a convicted felon and forgery. His case plan
required him to take parenting classes, have negative drug screens, visit the children
(who were about 9 and 13), establish a stable home, and get an income. Because the
TPR hearing was only 45 days after his release from prison, he successfully argued to the
Court of Appeals that he had not had a sufficient opportunity to finish his case plan
because he was in prison. Similarly, the Court’s decision In the Int. of A.F., 283 Ga.
App. 509 (2/8/07) reversed a termination where the parents “made significant progress
on their case plans [despite] their inability to dot every `i’ and cross every `t’.” Id., 283
Ga. App. At 516. “[A] failure by parents to live up to societal norms for productivity,
morality, cleanliness, and responsibility does not summarily rob them of the right to
raise their own offspring, nor does is end the children’s right to be raised by their own
parents.” Id. (internal citation and punctuation omitted)
17
18. 4. Causing Harm
Over the past five or six years, the Court of Appeals has gone back and forth
about what constitutes proof under OCGA § 15-11-94(b)(4)(A)(IV) that continued
deprivation “will cause or is likely to cause serious physical, mental, emotional, or moral
harm to the child.” Thus, numerous cases have reversed termination of parental rights
orders with language such as:
“We find that the state failed to present any evidence as to the effect that
such continued deprivation would have on the child. Although there are
indications in the record that the child was receiving counseling, there was
no testimony from any professional, or from any lay witness, that the child
would suffer physical, mental, emotional or moral harm from the current
situation . . . . It is not automatically true that finding deprivation likely to
continue will support a finding of harm.”
In the Interest of T.P., 270 Ga. App. 700 (2004); and
“Unlike other cases where we have found evidence of such harm, here no
expert witness, such as a psychologist, testified that the mother's antisocial
personality disorder or learning disability would be detrimental to the
children by causing such things as anger problems or school problems. See
In the Interest of S. A. B. Nor did any such witness testify that
impermanency and instability were causing specific harms to the
children.”
In the Interest of J.S.B., 277 Ga. App. 660, 663 (2006). At the same time, other cases
contained language indicating that the same evidence showing deprivation and a
likelihood that deprivation would continue showed harm or potential harm to the child.
E.g., In the Interest of A.M.L., 242 Ga. App. 121, 124 ( 2000).
This battle over the standard – actual proof or inference from the totality of the
circumstances – came to a head in In the Int. of J.K., 278 Ga. App. 564 (629 SE2d 529)
(2006). In what was apparently an unsuccessful attempt to disapprove of language
“inferring” harm, the Court of Appeals sitting en banc reaffirmed that, while the State
18
19. must prove the continued deprivation will cause serious harm to the child, what that
proof must be will vary from case to case.
The most recent cases have done little to clarify that issue. Thus, while in 2001
the Court felt the need to reverse a termination case because no expert or other qualified
witness testified the child would suffer emotional harm by remaining in foster care (In
the Interest of J.M., 251 Ga. App. 380, 383 (2001), most recently the Court has made
statements such as:
"It is well settled that children need permanence of home and emotional
stability or they are likely to suffer serious emotional problems.”
In the Int. of E.J., ___ Ga. App. ___ (A07A0680 decided 4/6/07); and
“[T]he court is authorized to consider the adverse effects of prolonged
foster care in determining that continued deprivation is likely to cause
serious physical, emotional, or moral harm to the child.”
In the Int. of K.L., 280 Ga. App. 773 (2006); and
"It is well settled that children need permanence of home and emotional
stability or they are likely to suffer serious emotional problems. Children
cannot be kept in foster care limbo with no hope of any permanent future."
In the Interest of B. D., 281 Ga. App. 725 (2006); and
“Deprivation of love and nurture is equally as serious as mental or
physical disability.”
In the Int. of T.G.Y., 279 Ga. App. 449, 472 (631 SE2d 467) (2006). Clear as mud, right?
5. Voluntary Surrender
The juvenile court terminated a mother’s parental rights in open court pursuant
to OCGA § 15-11-94(b)(1), which provides that rights may be terminated with “the
written consent of the parent, acknowledged before the court.” After signing such a
voluntary statement, which included provisions stating she had consulted with her
attorney, had been advised of her rights and the consequences of her surrender, and
19
20. after consenting to the termination, the mother changed her mind and filed a motion to
withdraw her voluntary surrender. The Court of Appeals held that OCGA § 15-11-94(b)
(1) has no “grace period” or other exception which would allow the mother to withdraw
a surrender made in open court. In the Int. of T.C.D, 281 Ga. App. 517 (2006).
Similarly, a parent who surrenders his or her rights to DFCS pursuant to OCGA §
19-8-4 is no longer entitled to receive any notice of hearings in a deprivation action. In
the Int. of A.C., ___ Ga. App. ___ (A06A2255 decided 2/27/07). In that case, DFCS
took the children into custody and then put the mother and the fathers on a
reunification case plan. Instead of complying, the mother decided to surrender all her
rights to the Department so the children could be adopted. The fathers, however,
apparently worked their case plans and regained custody of the children through the
juvenile court. The mother complained that she had been cut out of the juvenile court
process, but the Court of Appeals held that once she surrendered her rights to DFCS, she
was no longer entitled to be heard, to appear, or to object to any action in juvenile court.
The court contrasted this situation with that in which a mother surrenders her rights to
a third party for adoption under OCGA § 19-8-5. There, if the adoption does not take
place timely, the surrender specifies what happens to the child.
6. A Special Case: Mental Limitations
Some of the toughest deprivation and termination of parental rights cases involve
parents who are mentally limited. A recent example involved a termination on a child
born to a 14-year-old mother who had an IQ of 57. The child came into care when the
mother left him with her own mentally and emotionally unstable mother. The mother
completed all her case plan goals except completing high school or getting a GED. She
had maintained a home, completed parenting classes, and cooperated with DFCS. The
20
21. Court found, “Although [she] has completed most of her case plan goals and wishes to
be part of her child’s life, the evidence shows that she lacks the mental capacity to care
for H.F.G. without around-the-clock assistance from others, something DFCS is not
obligated to provide. . . . The test must be whether the parent, ultimately standing
alone, is capable of mastering and can effectively demonstrate the ability to utilize
parenting skills.” In the Int. of H.F.G., 281 Ga. App. 22 (2006)
That case should be compared with In the Interest of C. F., 266 Ga. App. 325
(2004), where the mother accidentally overdosed her child on Tylenol with codeine.
She was given case plan that included attending literacy classes. The juvenile court later
found continued deprivation because she could read only at kindergarten level. The
Court of Appeals reversed, however, because based on the evidence presented at the
hearing, the mother had substantially complied with the goals of the case plan. No one
had required her to attain the ability to read at any particular level.
Two other interesting cases along these lines:
• A father completed the case plan involving his child with cerebral palsy,
but nonreunification was ordered and adoption permanency plan
approved because of father’s own permanent mental limitations. The
Court of Appeals upheld the ruling because nonreunification is presumed
where there is “a medically verifiable deficiency of the parent's physical,
mental, or emotional health of such duration or nature as to render the
parent unable to provide adequately for the physical, mental, emotional, or
moral condition and needs of the child.” In the Interest of J. W., 271 Ga.
App. 518 (2005)
21
22. • The Court upheld ther termination of rights of a mother whose
Huntington’s disease was untreated. She had four automobile accidents in
the course of a few months because of her disease, her drivers’ license was
suspended, she wasn’t able to take care of her children. In the Int. of
M.T.H., 279 Ga. App. 662 (632 SE2d 441) (2006).
Reunification
“In order to approve the Department’s recommendation that reunification is not
appropriate, a juvenile court must determine by clear and convincing evidence that
reasonable efforts to reunify the child with his or her family would be detrimental to the
child.” In the Int. of C.A., 279 Ga. App. 747 (632 SE2d 698) (June 12, 2006). In one
recent case, the Court reversed a juvenile court’s finding that the father, who had
physically abused the child by bruising her severely and pulling her hair out, should not
be reunified. The father had complied with his reunification plan requiring safe and
stable housing, a psychological evaluation and followup, parenting classes, a substance
abuse evaluation and followup, drug screens, anger management, payment of child
support, and cooperation with DFCS. The Court found he substantially met the goals of
the case plan. “[T]he clear and convincing evidence standard safeguards the high value
society places on the integrity of the family unit and helps eliminate the risk that a
factfinder might base his determination on a few isolated instances of unusual conduct
or idiosyncratic behavior,” the Court held. In the Int. of S.L.E., 280 Ga. App. 145 (633
SE2d 454) (2006).
Placement
As noted in A.N., supra, “It is a longstanding rule that a trial court may not order
that legal and physical custody of a deprived child be divided between DFACS and some
22
23. other party unilaterally chosen by the court.” In the Int. of A.N., supra. In conjunction
with the case of In re Tidwell, supra, the A.N. case completely destroyed any notion that
the juvenile court has authority over where DFCS places a child. To counteract the
effects of the decision, the Legislature this session passed H.B. 153, as discussed above.
Most often, the question for the Court is what placement – DFCS or relatives – is
in the best interests of the child. In the Int. of S.V., 281Ga. App 331 (2006). Abuse of
discretion is the standard. In the Int. of L.L., 280 Ga. App. 804 (2006). However,
because it is incumbent upon the court and DFACS to conduct a thorough search for
relatives, where the record is devoid of such evidence the order will be vacated to
determine if such a search was made. In the Int. of T.A.M., 280 Ga. App. 494 (2006).
“Inasmuch as there is no conclusive preference given to relatives, the juvenile court is
afforded wide discretion to determine whether a child should be placed with a relative or
kept in a stable foster home.” In the Int. of K.W., 283 Ga. App. 398, 402-403
(2/1/2007)
A grandmother who was not a legal guardian of a child apparently has no
standing to appeal the juvenile court’s refusal to place a child with relatives after
terminating the parents’ rights. In the Int. of R.N.O, 281 Ga. App. 161 (2006).
In some cases, parents in termination cases have sought to defeat DFCS’
placement decisions by surrendering parental rights to a relative, even to a relative
whose home was disapproved by DFCS. See, e.g., Edgar v. Shave, 205 Ga. App. 337
(1992). It appears from the case of Smith v. Hutcheson, 283 Ga. App. 117 (Dec. 20,
2006), that practitioners taking this route should consider limitations of collateral
estoppel and the child’s best interests.
23
24. When a child is transferred to relatives, especially when it is done for a two-year
period, the Court order is supposed to state under what conditions the child can be
transferred back to the parent. An order that failed to contain such conditions had to be
vacated on appeal. In the Int. of T.R., ___ Ga. App. ___ (A07A0281 decided 3/30/07).
Legitimation
Legitimation issues often arise in deprivation and termination of parental rights
cases. In general, a putative biological father loses his right to contest a termination of
parental rights petition unless he files a petition for legitimation within 30 days of its
filing. OCGA § 15-11-96 (h). For a recent case discussing the requirement, see In the
Int. of S.M.G., ___ Ga. App. ___ (A07A0706 decided 3/7/07).
“In ruling on a legitimation petition presented by a putative biological father, the
juvenile court must initially determine whether the father has abandoned his
opportunity interest to develop a relationship with the child. If the juvenile court
concludes that the father has abandoned his opportunity interest, this is sufficient to
end the court’s inquiry and justifies the denial of the legitimation petition.” In the Int.
of J.L.E., 281 Ga. App. 805 (2006) (citation and punctuation omitted). There, the Court
found an opportunity interest abandoned where, while the father had some contact with
the 18-month-old child while she was an infant, he had failed to visit her for ten months
while she was in foster care and had subsequently been sentenced to a long prison term
for violating his probation.
In the recent legitimation case of In the Int. of C.L., ___ Ga. App. ___
(A06A2490 decided 3/29/07), an unusual set of circumstances led to a questionable
outcome. A putative father sued to legitimate his biological child, who was born to the
mother while she was married. The mother was later incarcerated and left the child
24
25. with her husband. The superior court legitimated the biological father then referred the
matter to juvenile court to determine custody. The juvenile court, applying a “best
interests of the child” standard, gave the husband and the newly legitimated father joint
custody. According to the Court of Appeals’ decision, once the superior court
legitimated the biological father, the court had no discretion to give custody to the
“former” legal father because “the statutes do not contemplate a child having two legal
fathers.”
Lest you thought common-law marriage was something you could forget, a father
asserted he was common-law married to the mother in In the Int. of D.C., 279 Ga. App.
889 (632 SE2d 744) (June 16, 2006).
For a thorough discussion of the possible standards for legitimation, see Bowers
v. Pearson, 271 Ga. App. 266 (2005).
While a person must normally file a request for discretionary appeal from a
legitimation decision, it can be appealed directly when done so with a termination of
parental rights decision. In the Interest of T.A.M., 280 Ga. App. 494 (2006)
Even if a putative father is not legitimate, it is critical that they be
contacted and that a case plan be established for them. Too often, social workers
tend to neglect putative fathers, and recently the Court of Appeals reversed a
termination determination because DFCS never implemented a reunification
plan for the father, who had expressed an interest in taking the child. In the
Int.of T.E.T., 282 Ga. App. 269, 273 (2006)
Evidentiary Issues
1. Mental Health Privilege
25
26. In State v. Herendeen, 279 Ga. 323 (613 SE2d 647) (2005), the Supreme Court
held that records and results of an individual’s treatment by a psychiatrist, psychologist,
licensed clinical social worker, clinical nurse specialist in psychiatric/mental health,
licensed marriage and family therapist, or licensed professional counselor are
privileged, and it matters not whether the individual is going through the treatment or
counseling at the Court’s order. See O.C.G.A. § 24-9-21 (8). The application of the
Herendeen case to therapy undertaken pursuant to a reunification plan arose in In the
Int. of I.M.G., 276 Ga. App. 598 (2005). There, the mother had received psychosexual
counseling from the Medlin Clinic to deal with the sexual abuse she had received in the
past and help her reunite with her children. Over objection, the juvenile court required
the therapist to state whether the mother had been truthful during the counseling.
The Court of Appeals first questioned whether Medlin had provided only a court-
ordered evaluation, which is not privileged, or court-ordered therapy, which is. I.M.G.,
276 Ga. App. at 602. Concluding that therapy was “contemplated or given,” the Court
found the privilege applied. In Herendeen, the Supreme Court had determined that
such a waiver must be express or must be proved through “decisive unequivocal
conduct.” 279 Ga. at 327.
These cases present obvious obstacles for any practitioner in juvenile court. How
can you show a child was traumatized unless his counselor can testify? How can you
determine whether a mother has completed her court-ordered therapy without
testimony from the therapist? Two approaches come to mind:
a. When the patient is a child, the guardian ad litem may be the appropriate person
to determine whether the privilege should be waived. Such was the proposed
solution in Herendeen.
26
27. b. When a parent undertakes mental health therapy pursuant to a court-ordered
case plan, then evidence must be presented in court showing whether the case
plan has been successfully completed. Under OCGA § 24-4-22, “If a party has
evidence in his power and within his reach by which he may repel a claim or
charge against him but omits to produce it, or if he has more certain and
satisfactory evidence in his power but relies on that which is of a weaker and
inferior nature, a presumption arises that the charge or claim against him is well
founded.” Since the parent has the “key” to presenting the evidence – i.e., waiver
of the privilege – one might consider taking a negative inference from his or
failure to produce that evidence.
2. Child Hearsay and Confrontation
In In the Int. of S.S., 281 Ga. App. 781 (2006), the Court refused to reverse a case
in which the juvenile court did not require the child victim to take the stand and be
sworn. The judge and lawyers took the six year-old back to chambers and spoke with
her but did not place her under oath. Following that exchange, the judge went on the
record in open court and ruled that it was not in the best interest of the child to be
questioned on the stand “given the fact that we can’t get any information out of the
young lady.” The Court of Appeals held that because the judge had an opportunity to
witness the child’s demeanor and unwillingness or inability to answer questions, the
judge could then properly find the child had been “available” to testify pursuant to the
child hearsay statute. The Court distinguished this bench trial situation from those in
which a jury is involved.
Compare that case with In the Interest of B.W., 268 Ga. App. 862 (2004). There
the child was alleged deprived based on reports that the child's mother was not
27
28. protecting the child from repeated acts of sexual molestation by the mother's boyfriend.
At the hearing on the matter, several witnesses testified (and a videotaped interview was
shown) as to statements the child made to them regarding acts of molestation by the
boyfriend and regarding the mother's refusal to protect the child from same. When the
mother attempted to call the child as a witness for cross-examination, the court refused
to allow the child to testify. The case was reversed because the child was not “available”
to testify.
Miscellaneous Points
A couple of new cases do not fit into any particular category but deserve mention.
They are:
• State v. Henderson, 281 Ga. 623 (1/22/07), which will make it more difficult to
have juveniles charged as adults transferred to juvenile court without the District
Attorney’s agreement.
• In the Int. of D.B., ___ Ga. App. ___ (A07A0199 decided 3/22/07), which holds
that a child cannot be found unruly for running away from home as long as he
intends to return. Thus, where the juvenile was gone from home for several days
without telling his mother where he was; where he finally showed back up at
home and said he’d been to a party; and where he had no intention to
permanently “desert” his home, he was not unruly!
Conclusion
I hope this paper is helpful to you. If you need the Powerpoint that went along
with this presentation, it will be posted at www.tomrawlings.com or email me at
tom@sandersville.net and I’ll send it to you.
Thanks.
28