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In this month's "Notes & Trends":
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Juvenile
Law
Judicial Law
Stepfather Adoption Reversed; No Abandonment or Termination
of Parental Rights Established. The Minnesota Court of
Appeals reversed a trial court order allowing adoption of daughter
by biological mother and stepfather. Four hearings were held,
commencing in October 1997, when mother and biological father
obtained joint custody, and father was ordered to pay child support.
Later, in December 1997, a hearing was held pursuant to mother's
motion seeking termination of father's parental rights due to
alleged abandonment. At that hearing, no determination of abandonment
was made by the court. Thereafter, on June 3, 1998, a follow-up
hearing was held where mother and stepfather's adoption was granted.
Biological father was not present and later argued that he had
not been given proper notice since he had been transferred to
another prison. On June 26, 1998, the district court held a fourth
hearing, with biological father appearing via telephone. The
court stated that it would, "continue this matter and proceed
from there," but did not vacate the adoption.
The Minnesota Court of Appeals reversed the trial court order,
holding that biological father did not receive adequate notice
of the hearing where the adoption was granted and that the district
court had failed to make a necessary determination that father
had abandoned his child, pursuant to Minn. Stat. §259. 24,
subd. 1 (1998). The appellate court further held that Minnesota
statutory and case law requires consent of adoption unless paternity
has been terminated. See Eggert v. Van De Weghe, 279 Minn.
31, 35-36, 155 N. W. 2d 454, 457-58 (1967). The court concluded
that the consent of a natural parent may be dispensed with only
in those cases where the issue of alleged unfitness underlying
the parental rights is raised and adjudicated and paternal rights
are extinguished. In the case at bar, father was entitled to
notice of the adoption proceedings, did not consent to the adoption
of his daughter by the stepfather and, prior to granting the
adoption, the court was required to find that father had abandoned
the child. Finally, the court directed that due process requires
that a parent be allowed to prepare, appear and protect parental
rights.
It should be noted that in dicta, the court suggested that
the facts of this matter taken together may support a finding
of good cause for termination of the father's rights, where the
biological father had no contact with the child for approximately
one year prior to his imprisonment and his only involvement in
her upbringing was disruptive. In fact, the child did not know
her father and would not recognize him, and the father had failed
to pay child support as required by court order. The district
court must first make a finding that father had abandoned the
child, and thereafter it may proceed to terminate his rights
and approve an adoption. Petition of Justin Lee Fossen and
Amy Jo Fossen to adopt M. E. F., 1999 WL 562669.
Summary Judgment Affirmed; Biological Mother HIV-Positive;
Death of Child during Prospective Parents' Care. The
Minnesota Court of Appeals affirmed summary judgment dismissal
of a lawsuit by prospective parents against Wellspring Adoption
Agency and Hennepin County Medical Center. The prospective parents
first argued that the adoption agency had breached the contract
between the parties and that the agency "knew or should
have known" of biological mother's health condition. At
the time of placement, the adoption agency was without complete
information as to biological mother's health, and in fact, the
prospective parents completed a form indicating they would, "accept
for adoption, a child whose complete medical and social history
was unavailable. "In dismissing this claim, the court found
that there was no evidence that Wellspring was aware of any medical
problems when the prospective parents took the child home. The
prospective parents next argued that Wellspring was negligent
per se, pursuant to Minn. Stat. §559. 43, which provides
that a birth parent or an agency, after reasonable inquiry, must
provide a prospective adoptive parent with a detailed social
and medical history of the birth families, if known. The court
found that Wellspring had used forms provided by the commissioner
of health in compliance with the statute, and there was no evidence
that the birth mother knew that she was HIV-positive or that
the agency knew anything more about the mother's social and medical
history than was provided to the prospective parents and, as
a result, the court dismissed the claim. The prospective parents
further argued that Wellspring was liable for making negligent
misrepresentations to them that the baby was healthy and the
"birth mother had all of her testing done. "There was
evidence wherein the prospective parents admitted that neither
they nor Wellspring ever discussed HIV testing and that the representation
about mother's "testing" pertained to prenatal testing
the mother had undergone. The court determined that there was
no evidence that Wellspring employees made any untruthful statements
about the baby's health or gave the prospective parents incomplete
or misleading information.
Finally, the prospective parents asserted that Hennepin County
Medical Center owed a legal duty to inform them and the adoption
agency of any health issues concerning the baby and the birth
mother. Without reaching the issue of whether a duty was owed
by HCMC to the prospective parents, the court determined that
there was no evidence that such a duty was breached. The child
was born on July 26, 1997, and discharged into the prospective
parent's care on July 29. There was no evidence that the discharge
nurse had any information available to her at that time other
than that the birth mother was HIV-negative. A printed lab report
obtained later on July 29 indicated that the mother was reactive
for HIV and a follow-up report dated August 2 confirmed that
that the mother was HIV-positive. There was evidence in the record
that the hospital informed Wellspring of the mother's condition
on August 22, 1997. The court concluded that the reporting of
mother's HIV status was timely. The court dismissed the prospective
parents' claim, stating that there was no evidence of misrepresentation
or of a breach of duty to inform.
It should be noted that when the parties and the adoption
agency learned of the child's potential health issues, the agency
offered to find foster placement for the child and, after taking
time to consider whether they wanted to keep the child, the prospective
parents decided to keep her, notwithstanding her health problems.
On September 11, 1997, the child was found dead. The autopsy
report listed the cause of death as Sudden Infant Death Syndrome.
The court found that there was no evidence that the death of
the child was caused by any condition known by HCMC.
Termination of Parental Rights; Abuse, Neglect and Chemical
Dependency. The Court of Appeals affirmed a trial court
order terminating parental rights of mother and father to their
three children. Beltrami County Social Services became involved
with the family in May 1989, two months after V. P. was born.
Beltrami and Roseau Counties worked with the family over several
years to address persistent problems of neglect and physical
abuse. Until termination of parental rights in 1998, the family
had ten child protection assessments, two emergency foster care
placements, four psychological evaluations for each parent, 65
months of homemaker services, intensive in-home counseling, and
more than a year of foster care for each child. Notwithstanding
county efforts, neglect and physical abuse persisted. In affirming
termination of parental rights, the appellate court determined
that the trial court findings were supported by substantial evidence
and were not clearly erroneous. The court reviewed each statutory
element and concluded that the trial court correctly found: continuous
neglect with reasonable efforts having failed to correct the
condition, the parents were palpably unfit, and an adjudication
as Children In Need of Protection or Services, with reasonable
efforts having failed to correct the condition. The appellate
court concluded that there was substantial evidence that supported
termination in that the county exercised due diligence and used
appropriate and available services in an attempt to meet the
needs of the children and the family.
The parents argued that the county failed to use reasonable
efforts to reunite the family, as required by Minn. Stat. §260.
221, subd. 5 (1998). The record reflected substantial evidence
of uninhabitable living conditions for the children and numerous
instances of abuse. Individual counseling was made available
to the parents, homemaker services as well as intensive home
counseling services and 76 months of foster care for two of the
children and 14 months of foster care for the other did not lead
to positive changes by the parents. The court determined that
the reunification efforts were extensive, reasonable, and administered
in a timely manner. See Minn. Stat. §260. 012 (c),
(1998).
The parents then argued that the district court failed to
consider the family's "probable future condition. "To
terminate parental rights, the conditions supporting termination
must appear likely to continue for a prolonged, indefinite time,
as set forth in A. D., 535 N. W. 2d at 647. The court
of appeals determined that the record clearly reflected findings
that chemical dependency and neglect "will continue for
a long and indeterminate period of time. "Although both
parents had quit smoking and joined a church, the appellate court
agreed with the district court finding that the underlying conditions
including physical abuse, unsanitary housing and inability to
care for the children were very likely to persist. Expert testimony
was presented at trial that the parents lacked the parenting
skills needed to deal with the exceptional emotional and behavioral
needs of their three children and that depression impaired their
ability to parent. The court concluded that, considering the
facts and the lack of success of past programs instituted by
the county, in the foreseeable future, the conditions of neglect
and abuse would continue indefinitely and termination was warranted.
In the Matter of the Welfare of A.P., C.P., and V.P.,
C7-99-171. |
By William A. Winter
Walling & Berg, P.
A. |
