In re C.M.B.R - the Missouri Bar

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The Missouri Bar
Fall Committee Meetings
November 18, 2011
Family Law Section
Immigration Law Committee
Juvenile Courts and Laws
Committee
Joint CLE
Adoption Practice
and
Ethical Representation
1.5 CLE Credit
1 Ethics Credit
General Topics
1. Overview of In re C.M.B.R.
2. Process and procedure of litigating the
chapter 453 adoption with allegations
pled under 211.447
3. Special considerations with
undocumented parents
4. Special considerations with
undocumented children
In re C.M.B.R
333 S.W.3d 793
Missouri Supreme Court
January 25, 2011
This Case Addresses Issues of:
Immigration and Resources
Due Process for Parents & Parties
Access to Courts for Parents & Parties
Timely Permanency for Children
Initial / Proper Placement of Children
Factual Summary
Mother is an illegal immigrant from Guatemala.
She gives birth to Child on October 17, 2006, after
entering the US (May 15, 2006).
She “parents” Child by herself until she is
arrested.
She is arrested by immigration while working in a
poultry plant (May 22, 2007).
She only speaks Spanish.
After her arrest, she arranges for her brother
(Child’s uncle) to provide primary care for her
infant Child but…
Brother moves Child to their Sister (Child’s
aunt), who later agrees to let a clergy family
provide primary care for Child (time frame is
unclear from case & record).
Clergy family knows a family who wants to adopt
a child (September, 2007).
Adoptive Family meets Child (September 24,
2007).
Adoptive Family starts visiting with Child
(October 3, 2007).
Adoptive Family files private action Petition for
TPR / Adoption (October 5, 2007).
Mother pleads guilty in federal court (October
11, 2007); she receives a two year sentence.
Mother is served with Adoption/TPR Petition and
summons in jail (October 16, 2007).
Court schedules transfer of custody hearing;
Mother is not listed in notice (October 17, 2007).
Transfer of Custody Hearing held & granted
(October 18, 2007).
Mother writes to counsel for Adoptive Parents,
protesting adoption & requesting visits (October
28, 2007).
Court appoints first counsel for Mother
(December 3, 2007) – notice mailed to Mother in
jail, but service not accepted.
Adoption hearing set (notice filed December 3,
2007).
Adoptive parents direct their counsel to find a
new attorney who speaks Spanish for Mother
and they arrange to pay the fees. New counsel
appointed (June 13, 2008).
New counsel speaks one time by phone and
writes one letter to Mother.
Contested Adoption / TPR Trial Day
(October 7, 2008)
Three Count Petition:
1. Transfer of Custody & TPR (§ 453.040.7)
2. TPR (§ 211.447.2.b)
3. Grant the Adoption (in Child’s best interests).
Mother appeared by her counsel.
Counsel cross-examined witnesses, presented
a letter from Mother and argued on her behalf.
After closing, the court granted the Petition.
Written order followed (October 9, 2008).
Legal Holdings
Reversed and remanded; the failure to
investigate and file required reports, prior to trial,
is manifest error. Reviewed as “plain error.”
§211.447 & 455: No investigation or social
study of proposed adoptive parents was made
prior to TPR being granted.
§453.070 & 077: No pre & post-placement
assessments of Child with Adoptive Parents
were presented to court for best interests.
Process of litigating the
Chapter 453 adoption with
allegations pled under
211.447
Adoptions pursuant to
Chapter 453 only
Jurisdictional Elements:
Pursuant to §453.010.1,
– at least one of the following jurisdictional elements
exists:
– The person seeking to adopt resides in the county§453.010.1(1)
– The subject child was born in the county§453.010.1(2)
– The child is found within the county at the time the
petition is filed - §453.010.1(3)
– Either birth parent resides in the county§453.010.1(4)
Jurisdictional Elements:
Pursuant to §453.010.3, if the child to be
adopted is under a court’s prior and continuing
jurisdiction pursuant to Chapter 211, at least
one of the following circumstances exists:
– The Petitioner has petitioned the juvenile division
which has jurisdiction over the child for permission to
adopt.
– If the Petitioner is requesting any alternate venue set
forth in §453.010.1, the Petitioner has filed a motion
with the juvenile division and the receiving court has
provided consent before jurisdiction is transferred to a
juvenile division in an alternative venue permitted
under §453.010.1
Other Jurisdictional Elements
Interstate Compact on the Placement of
Children applies (see §210.620 et seq.)
Indian Child Welfare Act applies (see 25
U.S.C. §1901 et seq, regarding the
applicability of ICWA and tribal notice and
service requirements)
What are § 211.447 grounds?
What are § 211.447 grounds?
Information available to the juvenile officer
or the division establishes that the child
has been in foster care for at least fifteen
of the most recent twenty-two months;
What are § 211.447 grounds?
Information available to the juvenile officer
or the division establishes that the child
has been in foster care for at least fifteen
of the most recent twenty-two months;
A court of competent jurisdiction has
determined the child to be an abandoned
infant. For purposes of this subdivision, an
"infant" means any child one year of age
or under at the time of filing of the petition.
What are § 211.447 grounds?
What are § 211.447 grounds?
A court of competent jurisdiction has
determined that the parent has:
What are § 211.447 grounds?
A court of competent jurisdiction has
determined that the parent has:
– Committed murder of another child of the
parent;
What are § 211.447 grounds?
A court of competent jurisdiction has
determined that the parent has:
– Committed murder of another child of the
parent; or
– Committed voluntary manslaughter of another
child of the parent;
What are § 211.447 grounds?
A court of competent jurisdiction has
determined that the parent has:
– Committed murder of another child of the
parent; or
– Committed voluntary manslaughter of another
child of the parent; or
– Aided or abetted, attempted, conspired or
solicited to commit such a murder or voluntary
manslaughter
What are § 211.447 grounds?
A court of competent jurisdiction has determined
that the parent has:
– Committed murder of another child of the
parent; or
– Committed voluntary manslaughter of another
child of the parent; or
– Aided or abetted, attempted, conspired or
solicited to commit such a murder or voluntary
manslaughter ; or
– Committed a felony assault that resulted in
serious bodily injury to the child or to another
child of the parent
What are § 211.447 grounds?
The child has been abandoned. For
purposes of this subdivision a "child"
means any child over one year of age at
the time of filing of the petition.
What are § 211.447 grounds?
The child has been abused or neglected.
– The Court must make findings on four specific
conditions or acts of the parent relating to;
Mental Condition
Chemical Dependency
Severe act of Abuse
Repeated or Continuous failure to provide for the
child
What are § 211.447 grounds?
The child has been under the jurisdiction of the juvenile
court for a period of one year, and the court finds that the
conditions which led to the assumption of jurisdiction still
persist, or conditions of a potentially harmful nature
continue to exist, that there is little likelihood that those
conditions will be remedied at an early date so that the
child can be returned to the parent in the near future, or
the continuation of the parent-child relationship greatly
diminishes the child's prospects for early integration into
a stable and permanent home
The Court must consider and make specific findings
What are § 211.447 grounds?
The parent has been found guilty or pled guilty
to a felony violation of chapter 566 when the
child or any child in the family was a victim, or a
violation of section 568.020 when the child or
any child in the family was a victim. As used in
this subdivision, a "child" means any person who
was under eighteen years of age at the time of
the crime and who resided with such parent or
was related within the third degree of
consanguinity or affinity to such parent
What are § 211.447 grounds?
The child was conceived and born as a
result of an act of forcible rape. When the
biological father has pled guilty to, or is
convicted of, the forcible rape of the birth
mother, such a plea or conviction shall be
conclusive evidence supporting the
termination of the biological father's
parental rights
What are § 211.447 grounds?
The parent is unfit to be a party to the parent and child
relationship because of a consistent pattern of
committing a specific abuse, including but not limited to,
abuses as defined in section 455.010, child abuse or
drug abuse before the child or of specific conditions
directly relating to the parent and child relationship either
of which are determined by the court to be of a duration
or nature that renders the parent unable, for the
reasonably foreseeable future, to care appropriately for
the ongoing physical, mental or emotional needs of the
child
Additional Elements of 211.447
The juvenile court may terminate the rights of a
parent to a child upon a petition filed by the
juvenile officer or the division, or in adoption
cases, by a prospective parent, if the court finds
that the termination is in the best interest of the
child and when it appears by clear, cogent and
convincing evidence that grounds exist for
termination pursuant to subsection 2, 4 or 5 of
this section.
Additional Elements of 211.447
The court shall evaluate and make findings on
the following factors, when appropriate and
applicable to the case:
– (1) The emotional ties to the birth parent;
– (2) The extent to which the parent has
maintained regular visitation or other contact
with the child;
Additional Elements of 211.447
The court shall evaluate and make findings on
the following factors, when appropriate and
applicable to the case:
– (3) The extent of payment by the parent for the cost of
care and maintenance of the child when financially
able to do so including the time that the child is in the
custody of the division or other child-placing agency;
Additional Elements of 211.447
The court shall evaluate and make findings on
the following factors, when appropriate and
applicable to the case:
– (4) Whether additional services would be likely to
bring about lasting parental adjustment enabling a
return of the child to the parent within an
ascertainable period of time;
– (5) The parent's disinterest in or lack of commitment
to the child;
Additional Elements of 211.447
The court shall evaluate and make findings on
the following factors, when appropriate and
applicable to the case:
– (6) The conviction of the parent of a felony offense
that the court finds is of such a nature that the child
will be deprived of a stable home for a period of
years; provided, however, that incarceration in and of
itself shall not be grounds for termination of parental
rights;
Additional Elements of 211.447
The court shall evaluate and make findings on
the following factors, when appropriate and
applicable to the case:
– (7) Deliberate acts of the parent or acts of another of
which the parent knew or should have known that
subjects the child to a substantial risk of physical or
mental harm.
Why file § 211.447 grounds in
your Chapter 453 adoption?
Chapter 453 Adoption
FOR ADOPTION OF A CHILD UNDER
AGE OF 18 YEARS:
– Consent of adoptee
If over 14 years (§453.030.2)
– The child’s mother
– The child’s current adoptive parents
– Other legally recognized mother or father
Chapter 453 Adoption
FOR ADOPTION OF A CHILD UNDER AGE OF 18 YEARS:
Only the man who:
– §453.030.3(2)(a) -- is presumed to be the father pursuant to
subdivision (1), (2) or (3) of §210.822, or
– §453.030.3(2)(b) -- has filed an action to establish his paternity
in a court of competent jurisdiction no later than fifteen days after
the birth of the child and has served a copy of the petition on the
mother in accordance with §506.100, or
– §453.030.3(2)(c) -- has filed with the putative father registry
pursuant to §192.016, a notice of intent to claim paternity or an
acknowledgment of paternity either prior to or within fifteen days
after the child’s birth, and has filed an action to establish his
paternity in a court of competent jurisdiction no later than fifteen
days after the birth of the child
Consent not required from:
§453.040(1) - a parent whose rights with
reference to the child have been
terminated pursuant to law;
§453.040(2) -- a parent who has legally
consented to a further adoption of the
child;
§453.040(3) -- a parent whose identity is
unknown and cannot be ascertained at the
time of the filing of the petition;
Consent not required from:
§453.040(4) -- a man who has not been
established to be the father and who is not
presumed by law to be the father, and who
after the conception of the child, executes
a verified statement denying paternity and
disclaiming any interest in the child and
acknowledging that this statement is
irrevocable when executed and follows the
consent as set forth in §453.030;
Consent not required from:
§453.040(5) -- a parent or other person
who has not executed a consent and who,
after proper service of process, fails to file
an answer or make an appearance in a
proceeding for adoption or for termination
of parental rights at the time such cause is
heard
Consent not required from:
§453.040(6) -- a parent who has a mental
condition which is shown by competent
evidence either to be permanent or such
that there is no reasonable likelihood that
the condition can be reversed, and which
renders the parent unable to knowingly
provide the child the necessary care,
custody and control;
Consent not required from:
§453.040(7) -- a parent who has for a period of
at least six months for a child one year of age or
older, or at least sixty days for a child under one
year of age, immediately prior to the filing of the
petition for adoption, willfully abandoned the
child or for a period of at least six months
immediately prior to the filing of the petition for
adoption, willfully, substantially and continuously
neglected to provide him with necessary care
and protection;
Consent not required from:
§453.040(8) -- a parent whose rights to the
child may be terminated for any of the
grounds set forth in §211.447, and whose
rights have been terminated after hearing
and proof of such grounds as required by
§§211.442-211.487.
What is a Consent?
Do the forms comply with §453.030.4§453.030.9?
Children’s Division Form CD 48 OR CD49
utilized
– Forms may be found at:
http://www.dss.mo.gov/cd/info/forms/
Why Are Assessments Needed?
1.
2.
3.
4.
§453.070.1 (pre-placement) and §453.077.1 (post –
placement) are required prior to adoption decrees being
granted.
The court was provided only with a report as to whether
the adoptive parents were suitable as “foster parents”
(they were not suitable). No report informed the court
about “Best Interests” Factors, such as:
The child’s suitability for adoption, or
Adoptive family’s fitness to be adoptive parents, or
The child’s post-placement adjustment with adoptive
family, or
The adoptive family’s post-placement adjustment to
Child.
Chapter 453
Required Documents
Assessment of adoptive parents pursuant
to §453.070 to be completed by
____________(person/agency), and to be
submitted to the court prior to transfer of
custody pursuant §453.110.6
Chapter 453
Required Documents
Post – Placements Assessments pursuant
to §453.077 to be completed by
_____________ (person/agency) and
submitted to the court
Chapter 453
Required Documents
The person placing the child for adoption
shall provide a written report regarding the
child pursuant to §453.026 before the
prospective adoptive parent accepts
physical custody of the child (Subject to
application of §453.110.5) to:
– The Court
– The Guardian ad Litem
– The prospective adoptive parent
Additional Required Documents
when 211.447 grounds are pled
investigation and social study pursuant to
§211.455(3) to be completed by
_____________ (agency/person)
– The following parties shall have access to the
investigation and social study at least 15 days prior to
any dispositional hearing, i.e., the trial:
– Parties
– Attorneys
– GAL
– Volunteer advocates
Additional Procedural Steps
when 211.447 grounds are pled
Has notice been provided to the Juvenile Officer
and/or the Children’s Division that allegations
under §211.447 have been pled?
– Joinder of Necessary Parties
Juvenile Officer
Children’s Division
Meeting with the juvenile officer to determine
whether all proper parties have been served
(within 30 days of filing the petition) - §211.455.1
Service of Process
Requirements: Service of
Process pursuant to
§506.100
Service of Process Requirements:
Service of Process Requirements:
– Any person, agency, organization or
institution whose consent to the adoption is
required by law, unless consent is filed in
court; §453.060.1(1)
Service of Process Requirements:
Service of Process Requirements:
– Any person whose consent to the adoption,
according to the allegation of the petition for
adoption, is not required for the reasons set
forth in subdivision (6) or (7) of §453.040;
§453.060.1(2);
Service of Process Requirements:
Service of Process Requirements:
– Any person, agency, organization or
institution, within or without the state, having
custody of the child sought to be adopted
under a decree of a court of competent
jurisdiction even though its consent to the
adoption is not required by law;
§453.060.1(3);
Service of Process Requirements:
Service of Process Requirements:
– Any legally appointed guardian of the child;
§453.060.1(4);
– Any person adjudicated by a court of this
state or another state, a territory of the U.S. or
another country to be the father of the child
§453.060.1(5);
Service of Process Requirements:
Service of Process Requirements:
– Any person who has timely filed a notice of
intent to claim paternity of the child pursuant
to §192.016; and
– Any person who has timely filed an
acknowledgment of paternity pursuant to
§193.087
Service of Process Requirements:
In a Chapter 453 Adoption with allegations
pled under §211.447 – in addition to
persons required to be served under
Chapter 453 pursuant to §211.453.2 –
service of process is required on:
Service of Process Requirements with 211.447
Grounds :
The child’s parent(s) (as defined in §211.442(3)) §211.453.2(1);
– The biological parent(s) of a child
– The husband of the natural mother at the time the child was
conceived
– The child’s parent(s) by adoption
– The child’s mother
– The putative father of a child shall have no legal relationship
unless he, prior to the entry of a decree under §211.442 to
§211.487, has acknowledged the child as his own by
affirmatively asserting his paternity.
Service of Process Requirements with 211.447
Grounds :
The putative father who has
acknowledged the child as his own by
affirmatively asserting his paternity, unless
the parent has filed a consent to the
termination of parents rights in court;
§211.453.2(1);
Service of Process Requirements with 211.447
Grounds :
Guardian of person of the child;
§211.453.2(2);
A person, Agency or organization having
custody of the child; §211.453.2(3);
Service of Process Requirements with 211.447
Grounds :
A foster parent, relative or other person
with whom the child has been placed;
§211.453.2(4); and
Any other person whose presences the
court deems necessary; §211.453.2(5)
Service of Process Requirements with 211.447
Grounds :
If a parent’s identity is unknown and
cannot be ascertained or cannot be
located, no service is required; §211.453.3
Service waived or Entry of Appearance
filed by a person required to received
summons; §211.453.4
Service of Process Requirements with 211.447
Grounds :
Service by publication requested if service
of process cannot be made in the manner
prescribed in §506.150; such service shall
be made by mail or publication as
provided in section; §506.160
Practical Application
Larger Issues: Due Process –
Notice of Proceedings:
What are court’s obligations to provide
notice to incarcerated parents?
To parents incarcerated out of state?
To illegal immigrants?
To parents who do not speak English?
To parents who are educationally limited?
To parents who have cultural limitations?
Larger Issues: Due Process –
Parent’s Opportunity to Participate
What are a court’s obligations to ensure
that a parent can be present in court, or
That a parent can understand what is
being said and done in court?
That a parent can meaningfully participate
in court proceedings?
How to balance these against a child’s
need for permanency?
Right to Counsel
§453.030.12
A birth parent, including a birth parent less than
eighteen years of age, shall have the right to
legal representation and payment of any
reasonable legal fees incurred throughout the
adoption process.
Right to Counsel
The Court may appoint counsel to represent the
birth parent pursuant to §453.030.12 if:
– The birth parent requests representation,
– The court finds that hiring an attorney to represent the
birth parent would cause a financial hardship for the
birth parent, and
– The birth parent is not already represented by
counsel.
Right to Counsel
Payment of attorney fees for the birth parent:
Except where the court determines that the
adoptive parents are unable to pay reasonable
attorney fees and appoints pro bono counsel for
the birth parent, the court shall order the costs of
the attorney fees incurred pursuant to
§453.040(5)453.030.12 to be paid by the
prospective adoptive parents or the child-placing
agency.
Additional Rights to Counsel
Chapter 211
Additional Rights to Counsel
§211.211
) §211.211.1-A party is entitled to be represented by
counsel in all proceedings.
§211.221.4-When a child’s custodian appears before the
court without counsel, the court shall appoint counsel for
the custodian if it finds:
The custodian is indigent, §211.221.4(1);
Custodian desires the appointment of counsel,
§211.221.4(2); and
A full and fair hearing requires the appointment of
counsel for the custodian §211.221.4(3
Additional Rights to Counsel
§211.462
Notification to parent, or guardian of the person
of the child, of the right to have counsel
The court shall appoint counsel if the child’s
parent or guardian of the person of the child:
– requests counsel, and
– is financially unable to employ counsel
Due Process – Right to Counsel Parent Must Request:
“The parent… shall be notified of the right to have
counsel, and if they request counsel…, counsel
shall be appointed by the court.” §211.462.2.
“12. A birth parent… shall have the right to legal
representation and payment of any reasonable
legal fees incurred…In addition, the court may
appoint counsel… if: (1). A birth parent requests
representation;” § 453.030.12.
Due Process – Right to Counsel Parent Must Request:
Mother never asked for counsel. Was this
due to:
• Her lack of interest in her child, or
• Her incarceration status, or
• Her inability to speak English, or
• Her lack of access to interpreters, or
• Her failure to appreciate the seriousness
of her situation?
Due Process – Right to Counsel
Each concurring opinion wrote strongly for
reversal but no remand for new trial (just
return Child to Mother directly) – troubled
in part by issues of mother’s lack of
access to counsel who was:
–1. effective, and
– 2. conflict-free
Due Process – Right to Counsel
Effective counsel:
Mother’s counsel did not object to lack of
reports.
Did not object to hearsay evidence at trial.
Did not present evidence on her behalf (which
was presented to MO Supreme Court, but was
held as “outside the record” because it was not
presented at trial).
Did not object to lack of service on Mother.
Did not file a timely notice of appeal.
Due Process – Right to Counsel
Conflict-Free counsel:
Mother’s counsel was located and retained
by Adoptive Family through their counsel,
who promised to pay his fees.
Information outside the trial record:
Mother’s counsel received written
information, advice and instructions from
Adoptive Parents’ Counsel before he met
with his client.
Due Process – Right to Counsel –
Ethical Questions:
Who pays for parental counsel if adoptive
families should not?
Can a parent consent or waive the
apparent conflict of interest to facilitate the
adoption?
What should a court do if parents request
counsel in a contested §453 adoption, but
cannot pay?
Due Process – Right to Counsel
– Ethical Questions:
Continuing Educational Issues for
Attorneys
Impact on parents rights in adoptions
when they are unrepresented in 211.031
matters
How does a Petitioner insure birth parents
are properly represented without creating
a conflict of interest?
Special Considerations
Undocumented Parents
Special Considerations
Undocumented Parents
 Impact of threat of deportation
 Impact of incarceration prior to deportation
 Impact of deportation
 Use of Alias
 Native Language Issues
 Lack of familiarity with Court Systems
Special Considerations
Undocumented Children
Special Considerations
Undocumented Children
 Impact of adoption on US citizenship
 Notice requirements to Child’s country of origin
 Understanding and documentation of parentage
of undocumented children
The End
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