Archive for the ‘Family Law’ Category

U.S. Supreme Court not reviewing controversial adoption case

May 11, 2009

It has just come to our attention that the controversial case, In re A.A.T. from December (which produced a rare 4-3 split among the Justices of the Kansas Supreme Court) will not be taken up by the United States Supreme Court. In an order issued on April 20th, the U.S. Supreme Court denied certiorari, without any comment. This was a case in which the Kansas Supreme Court refused to re-open a finalized adoption proceeding in order to give a chance for the unmarried father of the child to attempt to dispute the adoption.

Disclosure: In previously published commentary on this case, this blog has stated that we strongly agree with the majority’s decision.


Decision: In re A.J.S.

March 27, 2009

March 27th. The Kansas Supreme Court has issued its decision In the matter of A.J.S. (No. 99,130) an adoption proceeding from Sedgwick County. In a unanimous decision, authored by Justice Beier, the court overturned one of its own precedents dating from 1982 and reversed a District Court decision which had held that the Indian Child Welfare Act (ICWA) did not apply to the circumstances of this adoption, where the baby’s unmarried father and his tribe sought to block the adoption of the child by the mother’s family. The decision had been stayed for some time, due to a paternity test.

The child’s father is an Indian, a member of the Cherokee Nation. His mother is not an Indian. [It should also be noted that the father maintains that the mother is an Indian, while the mother maintains that the father claimed not to have been]. The child was conceived after the two had been dating for one month. After the child was born the mother initiated proceedings to terminate the father’s parental rights and have the baby adopted by members of her family. The father asserted that the ICWA should apply to the proceedings. The Cherokee Nation sought to intervene in the case, also citing ICWA which gives tribes standing to intervene separately from the parents in child custody cases involving Indian children. The District Court ruled that ICWA does not apply since the child had never been part of an Indian family. The District Judge’s ruling stems from a 1982 Kansas Supreme Court decision (In Re Baby Boy L.), that has become known as the ‘existing Indian Family exception’.

In that case the Kansas Supreme Court had held that Congress had created the ICWA in response to cases where Indian families had been broken up by State Welfare Agencies and their children adopted by non-Indians. It was not intended to apply in a situation where an unmarried non-Indian mother of a child that had never been a member of an Indian home wanted her baby adopted by non-Indians.

Since that time some other states have followed this doctrine taking their lead from Kansas, but most have not. In some of those states, the legislatures have amended the laws to end the exception. At the same time, the United States Supreme Court has not stepped into the matter, save for one case which was decided on different grounds but which emphasized the tribe’s distinct right to intervene even in an adoption proceeding which both parents supported.

The Kansas Supreme Court decision draws heavily on this U.S. Supreme Court case (Mississippi Band of Choctaw Indians v. Holyfield, 1989), noting its reliance on Congressional record to show that a major motivating factor in the passage of ICWA in 1978 was to protect the interests of the tribes. The decision today also refers to several law review articles covering the ‘existing Indian Family exception’ whose titles make clear their overall position on the subject (e.g. “…The States’ Attempt to Slaughter Tribal Interests…”, “…Rerouting the Trail of Tears?”).

The opinion of the Court describes the above in much more detail and indicates the controversy surrounding it, and then rules that henceforth the “existing Indian Family exception” does not apply in Kansas and In re Baby Boy L. is overturned. As a result the adoption proceedings must continue with ICWA applying.

While this case has been proceeding the child in question has been living with its intended adoptive parents. Justice Beier’s opinion gives no clue as to the age of the child or the timeframes involved. It is important to note that this appeal is an interlocutory one – i.e. has happened relatively quickly and early on in the case. The District Court decision which was appealed concerned the applicability of ICWA. The District Court had not yet ruled on the termination of the father’s parental rights or finalized the adoption.

Commentary: Hard case, bad dissent

December 20, 2008

This is a follow up to an item about the decison in In Re Adoption of A.A.T., which appeared a few days ago. Before reading this commentary please read the case overview at that link.  What follows is personal opinion.

The opinions issued in this case can be summarized roughly as follows:

* The majority holds that M.P. missed his (albeit fleeting) opportunity to assert his parental rights as an unwed father. He therefore had no constitutional right to the notice which he was not given. The adoption therefore stands, and A.A.T (who is four years old). remains with the family he has spent his whole life with.

* Justice Nuss clearly thinks the father was wronged and that the adoption should be voided so that M.P. may regain his exclusive rights as a father to A.A.T. He makes no comment on the practical implications of this to A.A.T..

* Justice Beier implies horror at the practical application of her position, but would void the adoption and let the chips fall where they may because she sees the burden on M.P. set by the majority to be too great for him to have had a chance to meet it.

* Justice Rosen would void the adoption but have it replayed under a standard that includes the concept of the ‘best interests of the child’, something which would more or less guarantee that A.A.T. remain with his adoptive parents after several more years of draining legal fights.

It is my opinion that the outcome in this case was the correct one. It is somewhat disturbing that 3 out of 4 Justices on the Kansas Supreme Court would be willing to void the adoption, in the knowledge that to do so would present the likely outcome of a young child being ripped from his home and placed with a stranger who had never so much as seen him solely on the basis of biology. Justice Rosen suggests a way out, but there is no certainty that lower courts would have followed it had one more vote gone the dissenters way. What is more, while Rosen’s position (that the courts in Kansas have already established that the ‘best interests of the child’ is a valid theme in adoption cases) is a strong one, the language he couches it in is practically a license to judicial invention.

Justice Nuss’ dissent is particularly troubling. He praises M.P. for respecting N.T.’s abortion rights by eliminating himself from a role in the decision, then turns around and claims that because N.T. chose not to have an abortion but lied to M.P. about it that he can claim his rights. Does it not occur to Nuss that passively going along with the supposed abortion proves more than any legal analysis that M.P. abandoned his claim on the child?

The dissenters would have you believe that they are obligated to come to the conclusion they do by the state of the law and the current precedents from the US Supreme Court, yet we should remember that the court was not being asked whether M.P. would have prevailed had he attended the original hearing, but whether his failure to attend (for whatever reason) rose to the level of a constitutional violation, great enough to warrant reopening a case that has already been finalized where no such precedent exists in such an extreme situation.

When the US Supreme Court found a due process parental right of unwed fathers attached to the due process rights of parenting, it did so in a case far removed from this one. In that case an unmarried couple raised their children together, until the mother died and the State of Minnesota took the children and put them up for adoption. The father in that case effectively filled the now lost (in law) concept of common law marriage. To extrapolate from that case to the position that the dissenters take is an abomination.

Decision: In re the Adoption of A.A.T.

December 18, 2008

December 12th. A divided Supreme Court handed down its decision in the case of In re the Adoption of A.A.T. (No. 98,740). The court split 4-3, with Justice Luckert writing the majority opinion and Justices Nuss, Beier and Rosen each writing separate dissents. Justice Johnson was recused from the case and his place was taken by Judge Stephen Hill of the Court of Appeals. The court determined that it would not set aside the 2004 adoption of a baby boy (A.A.T.) and restore parental rights to his father M.P. who sought this outcome on the grounds that they had been wrongly terminated by a District Court.

M.P. (who lives in New York) is not and was not married to the boy’s mother N.T. when in 2003 she conceived. N.T. returned to Kansas from New York at Thanksgiving of that year, and in spite of promising to return to New York, never did, but maintained contact with M.P. by telephone. She eventually lied to M.P., informing him that she had obtained an abortion. When the baby was born, she immediately put him up for adoption and lied to the adoption agency and the District Court about M.P.’s name with the result that no notification of the hearing to terminate parental rights was posted to him and the notice that was printed in the New York Post listed the wrong surname for the putative father. M.P. did not attend the hearing and his parental rights were therefore terminated and the adoption finalized in 2004.

Throughout this time M.P. had held suspicions that N.T. had lied to him about the abortion and these were confirmed by phone at Christmas 2004. He therefore initiated various proceedings in Kansas. He argued that as A.A.T.’s father he had a liberty interest (i.e. a protected due process right under the US Constitution) to have been notified of the adoption proceeding, and that since he did not receive it the adoption should be set aside. He also asked that the Kansas courts grant him access to A.A.T. during the proceedings

The Court reviewed the District Court’s legal ruling de novo on the grounds that had the lower court been in error its ruling would be a nullity. This was against the way that A.A.T.’s adoptive parents had wished since it allows for the reopening of supposedly final proceedings. However, there were many other hurdles M.P. had to leap in order to prevail, and in the end he did not.

The Court based its ruling on the guiding precedent from the US Supreme Court on the ‘paternal rights of unwed fathers’. These, the majority held, show that mere parentage alone is not enough to develop a liberty interest in the raising of the child. Since there was no US Supreme Court precedent directly touching on this topic in the setting of a newborn adoption, the Court extrapolated from the precedents which do exist and held that men in such cases must do things such as financially support the mother during the pregnancy, and take aggressive steps to protect their legal rights as soon as they are able (for example, New York maintains a register where unwed fathers may file to indicate their claim to a relationship with their offspring). Since M.P. had not done any of this, the fact that he was not informed of the hearing, for whatever reason, is not sufficient to set aside the adoption. The fact that he was misled by N.T. is deemed irrelevant since (given his suspicions that she was lying) he could have excercised due diligence to determine that she was still pregnant, and followed up with the appropriate legal procedures to maintain his interest in the child.

Finally, the Court dismissed M.P.’s motion to grant visitation rights to A.A.T. on the grounds that with the case finalized he had no continuing interest. A.A.T., now four and a half years old will remain with the only family he has ever known.

Justice Nuss dissented. He argued that the Court’s analysis overlooked the way the case was shaped by N.T.’s abortion rights. The US Supreme Court has held that whatever paternal rights exist in no circumstances rise to the the level where they can interfere with a woman’s abortion rights. Therefore since N.T. had said she would have an abortion, M.P. should not have been expected to have taken any steps to support the child he had to assume was dead. Nuss goes further, suggesting that M.P.’s stated position that the decision on the abortion was up to N.T. showed a ‘total respect for [the] mother’s rights’ which put him at a procedural disadvantage thereafter, sufficient to be cureable by voiding the adoption and remanding the case to District Court.

Justice Beier dissented. Her view was that the burden upon M.P. set by the majority to establish a liberty interest was far too great for him to ever have had a chance to meet it. She also indicated that it was an inequitable burden since someone more financially challenged would be unable to meet it. She also rejected the American Association of Adoption Attorney’s argument in an amicus brief that A.A.T. has a liberty interest of his own in preserving his familial ties with his adoptive parents which trump’s M.P.s due process rights at this stage. Therefore she would also void the adoption and remand to the District Court. In doing so, she takes the position that since the Kansas Legislature enacted a law allowing for the best interests of the child to be a factor in adoptions after this case began that that part of the law would not be applied to the case.

Justice Rosen dissented. His view was essentially the same as that of Justice Beier, except that he would hold that the District Court could take into account the best interests of the child. His position is that this notion permeates the case law and therefore the fact that the legislature made it explicitly a factor in adoptions after this case began does not mean that it cannot be considered. He cites the 1881 Kansas case Chapsky v. Wood which introduced the concept. Furthermore he emphasizes that a child has Constitutional Rights and that the majority and dissenting opinions in turning solely on the interplay between the statutes and M.P.’s due process rights as an unwed father ignore these and treat A.A.T. as chattel.