Los Angeles Divorce and Family Law

Easier For Grandparents To Adopt

 

By Maura Dolan, Los Angeles Times 
8:31 PM PDT, March 19, 2009

The California Supreme Court sided with grandparents and others who want to adopt children over their parents' objections in a pair of rulings that legal experts said would make it easier for guardians to prevail in adoption cases.

Acting in two parental rights cases, the state high court unanimously upheld the constitutionality of a 2003 law that allows a court to end those rights when the parent has failed to take responsibility for the child for two years and adoption by the guardian would benefit the child.

The rulings clear the way for the adoption of potentially scores of California children being reared by grandparents or other legal guardians, a common situation when the parents are poor, disabled, addicts or in prison.

"As guardianship continues for an extended period, the child develops an interest in a stable, continuing placement, and the guardian acquires a recognized interest in the care and custody of the child," wrote Justice Carol A. Corrigan, author of Thursday's decisions.

C. Athena Roussos, who represented the guardians in one of the cases, said the ruling "really furthers the rights of children."

But Kimball J.P. Sargeant, who represented a parent, said the decision struck at "a fundamental constitutional right to parent." He said it was particularly troubling that the ruling came when the sputtering economy might force parents who lose their jobs and homes to place their children with other family members.

"It makes guardianships much more problematic for parents because basically what this means is that, if they agree to a guardianship, those to whom they entrust their children can adopt them two years later," Sargeant said.

The rulings apply to guardianships initiated by private parties, not by the state.

In one of the cases, a mother with a history of drug addiction contended that the 2003 law was unconstitutional because it did not require a showing that she was unfit at the time the court revoked her parental rights. The court said that "some showing of parental unfitness" was generally required, but "current unfitness" was "not always necessary."

In the other case, the court overturned an appeals court ruling that said the law was unconstitutional as it applied to an unwed father. The high court said the father could lose his parental rights if it was in "the best interest of the child."

The rulings mean that parents could lose their children even if they visited them while they lived with guardians.

In the first case, a heroin addict with a criminal history tried to block her daughter's paternal relatives from adopting Ann S., born in 2000. With the woman's consent, Ann's aunt and her husband had become the legal guardians when Ann was 17 months old.

The guardians have been married more than 25 years. They tried and failed to revoke the mother's rights while she was in prison in 2003. The mother was released the next year and did "appear to be trying to turn her life around," a licensed family therapist told a court at the time.

But an adoption study by a social worker concluded it would be "extremely detrimental" to Ann if she were not permanently placed with her guardians. The report said Ann was a friendly, normal 4-year-old child who called her guardians "Mama" and "Papa" and lived with them in a large and comfortable home.

The lower court ruled in favor of the guardians, and the mother appealed the case to the state high court, which ruled that reunification of mother and daughter was "at best a remote possibility."

Sargeant, the mother's lawyer, said Thursday that the mother was back in prison on a conviction in a case that was still pending when she was released in 2004. He said she had been sending her daughter cards and letters, taking parenting classes and doing "everything she can" pending her release.

Roussos, the lawyer for Ann's guardians, said they were overjoyed with the ruling and planned to adopt Ann as soon as it became final. The couple lives in a rural community in Yolo County.

In the other case, an unwed father tried to block his parents from adopting his child, Charlotte D.

Both of her parents had drug and alcohol problems, the court said. The mother has not seen the child since 1995, and the father, who lived for a while with his parents and daughter, had threatened his mother physically and injured his father, it said.

Once, Charlotte's father brought her into his room, placed the family cat in a sack and swung it around "until it screamed," the court said.

The grandparents, who live in Ventura County, tried to adopt Charlotte in 2004. A county adoption worker reported that Charlotte described her father as "scary." The report said Charlotte, then 9, was "a very attractive, petite, personable, precocious, sensitive, articulate child" who played the violin, participated in the school band, loved to ski and was taking tennis lessons.

An appeals court later ruled that the father should have been given an opportunity to prove he was a fit parent. But the state high court said the evidence showed overwhelmingly that he was not.

"He failed to make child support payments, behaved inappropriately and even cruelly to Charlotte and to both of his parents, abused his visitation rights and persistently engaged in criminal behavior," the court concluded.

 

Los Angeles Divorce Attorney

Paternity:"Duped Dads Fight Back"

A thought provoking article from Time Magazine. Link to full article

Extract. "It was the lawyers of ancient Rome who came up with the modern definition of fatherhood: Mater semper certa est; pater est quem nuptiae demonstrant (rough translation: The mother is obvious; the father is the one she was married to when the child was born). The Romans, however, didn't have access to genetic testing. Dylan Davis did. A few months after his divorce in 2000, Davis, 36, a software engineer in Denver, took a DNA test to confirm a nagging suspicion that he was not the biological father of his 6-year-old twins. The negative test results led him to give up partial custody of the boy and girl--"The anger grows and grows, and it just keeps chipping away at your love for those children," he says--and since his ex-wife moved to another state, he has had no contact with the twins. But under Colorado law, he is still required to pay $663 a month in child support. So Davis is lobbying to change the statute so that he and others like him won't be held financially accountable for children who aren't biologically theirs.
Advocates for these so-called duped dads say such men should be treated as victims of fraud and liken the need for paternity-disestablishment amendments to truth-in-lending laws. They point to many an egregious case in which the law's marital presumption of fatherhood has ended up enslaving a divorced dad, like the Michigan man who proved he had not sired his son but was still ordered to send child-support payments directly to the boy's biological father, who was granted custody after the mom moved out of his place and left the kid there. Increasingly, policymakers across the country are turning a sympathetic ear to such complaints. Florida last year joined Georgia and Ohio in allowing a man to walk away from any financial obligations regardless of how many years he may have been acting as a minor's father if he discovers he was deceived into parenthood. Fathers' rights groups in Colorado, Illinois and West Virginia are pushing for similar legislation that would remove or extend existing time limits for challenging paternity.

Spearheading the legislative movement is Carnell Smith, a Georgia engineer who found out shortly after he broke up with his girlfriend that she was pregnant and spent the next 11 years believing he was the girl's father. Then, in 2000, after his visitation time had been cut back around the same time that a court order nearly doubled his monthly child-support payments, he took a test that showed he was not the biological parent. Three years and about $100,000 in child support and legal fees later, Smith, 46, managed to disentangle himself from any responsibilities for the girl, and says he walked out of court "a broke but free man." He successfully lobbied his home state to pass its paternity-fraud law in 2002 and now runs a DNA-testing company. Its slogan: "If the genes don't fit, you must acquit!"

But justice for a disillusioned dad can clash with the best interests of a child raised to think of him as a father. "These cases get cast as the duped dad vs. the scheming wife," says Temple University law professor Theresa Glennon, who has examined the changing legal landscape. "This is really about men deserting children they have been parenting." She points out that severing paternal ties could devastate a child depending on the length and quality of his relationship with the nonbiological father.

Even so, last May the Mississippi Supreme Court ruled that the state's current law doesn't let a court consider a child's best interests when a father requests DNA testing to determine paternity. And in a sign of the further complications genetic testing may have unleashed, the New Jersey Supreme Court is debating whether a nonbiological father can sue the biological one for $110,000 in child-support reimbursement. The plaintiff in the case didn't learn the truth about the son he had believed to be his own until the kid was 30.

Some legislators, however, are acknowledging that there is more to fatherhood than what can be defined solely by the sharing of a few genes. Oklahoma last year joined several states in adopting a law that limits the time frame for contesting paternity to a few years after the child's birth. Paula Roberts, an attorney at the nonprofit Center for Law and Social Policy who helped craft these measures, argues that such time limits protect both the child and the nonbiological father, should Mom ever try to shut him out or the biological dad suddenly show up wanting to horn in. Meanwhile, activists in Oregon are planning to submit two competing bills this session. Both allow a man to contest paternity within a year of discovering he is not the biological father, but only one forces the courts to consider a child's best interests in every case. The other allows a nonbiological father to get out if he wants to, but if he's the one fighting to maintain parental status, then the court has to consider the child's interests. That's a lot of nuance, but when it comes to determining fatherhood, sometimes an easy answer isn't what's best.