The Arizona Supreme Court recently ruled that a father who had not established paternity or filed with the putative fathers’ registry could challenge an adoption when he acted quickly and filed a paternity action in Family Court within the notice period for John Doe fathers.
 
To understand this case, you must know the following facts.  Adoptions are in Juvenile Court and paternity and custody matters are in Family Court.  The putative fathers’ registry, though little known, can be very important in severance and adoption matters.  Registering with it ensures that a potential father will get notice of any case in Juvenile Court that will potentially affect his parental rights.  Failure to register with the putative fathers’ registry is a statutory ground for severance of parental rights.
 
The child in this case was conceived by unmarried parents in January, 2013. After the parents separated, the mother refused contact with the father.  Immediately after the child’s birth, the mother signed an affidavit of paternity falsely stating that she did not know the identity of the child’s father.  She also signed a consent to adopt in favor of the petitioners, and placed the child in their care.  Thirty days after the child’s birth, the petitioners searched the Arizona Putative Fathers’ Registry and found nothing. They filed a petition to adopt and, on November 25, 2013, published a John Doe notice of the pending adoption.  On the same day, the father filed his paternity action, knowing only the child’s date of birth and gender. He served the mother two days later, but she never informed the petitioners of the paternity action.  Unaware of the paternity action, the Juvenile Court granted the adoption.  The father learned of the adoption in February, 2014 and immediately amended his petition to include the previously unknown information about the child (name, place of birth, etc.).
 
The petitioners moved to dismiss the paternity case and the father moved to set aside the adoption. Paternity testing established that the father was the child’s biological father.  The trial court set aside the adoption. The Arizona Court of Appeals affirmed. 
 
On review by the Arizona Supreme Court, the issue was whether a father who timely files, serves and successfully pursues a paternity action under the family law statutes, but who fails to register as a putative father under the juvenile statutes, is entitled to notice of the adoption hearing or instead waives such notice and his right to contest the adoption.  The Arizona Supreme Court held that a father who timely files a paternity action within 30 days of service by publication and timely serves  that action on the mother is not precluded from establishing paternity and does not waive his right to contest the child’s adoption merely because he failed to file with the putative fathers’ registry.  The Supreme Court placed a strong emphasis on the mother’s deception.
 
The lesson from this case is that fathers should register with the putative fathers’ registry and should file paternity actions as soon as possible if they want to preserve their parental rights when the relationship with the mother has ended.  The potential adoptive parents should do everything they can do to give actual notice to parents of the pending adoption in order to avoid having an adoption be set aside later.
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Thursday, 04 September 2014 16:50

Termination of Parental Rights Basics

Some of the most disturbing cases are termination of parental rights cases.  The power of our government to take a child away from a parent should disturb anyone.  However, what some parents do to their children is even worse.  The juvenile court must walk a fine line between protecting children and not violating parents’ rights.  Cases in juvenile court can be the most disturbing, but it is also where a lawyer can do the most to protect a child.  To illustrate the legal standards in terminating a parent’s rights, I summarized below a published Arizona appellate court decision from about four years ago.

The trial court terminated Father’s parental rights regarding his two daughters because he was unable to discharge his parental responsibilities because of his chronic drug abuse causing him to be unable to discharge his parental responsibilities.  Other grounds that a Court may use are abandonment, serious abuse or neglect (including knowingly failing to protect the child), that the parent is unable to discharge parental responsibilities because of mental illness, incarceration for a felony that proves the parent’s unfitness, failure to file a paternity action, failure to file a notice of claim of paternity, that the parents have relinquished their rights and placed the child for adoption, that the child has been in out-of-home placement for a certain number of months, that the identity of the parent is unknown after three months of diligent efforts to identify the parent, and that the child has been in and out of placement after diligent efforts at reunification.  The court also made the requisite finding that termination was in the children’s best interest.  The state had previously removed the girls from their mother’s care and placed them with Father because Mother failed to report that her husband had sexually abused them, and permitted them to continue residing with her husband. Father accepted services from the state for his substance abuse, participated in treatment on and off, and, although he had several periods where he tested negative for drugs he consistently failed to remain off of drugs.  He also permitted his alcoholic stepfather to care for the children.  Also, under his care the children were in a head-on collision that resulted in very serious injuries to one of them.  Father also injured one of the girls when he physically abused her.

The issue on appeal was whether the trial court had sufficient evidence to find that Father was unable to meet his parental responsibilities due to his chronic drug abuse.  To terminate a parent’s parental rights for chronic drug abuse, a court must find the following factors by clear and convincing evidence (a high standard): 1) a history of chronic abuse of alcohol or controlled substances; 2) that the parent is unable to meet parental responsibilities because of the chronic abuse; and 3) that the chronic abuse will continue for a long and indeterminate period. If the court makes these findings, the court must then find by a preponderance of the evidence (more likely than not - a lower standard than clear and convincing evidence) that termination is in the child’s best interest. Father pointed to periods during which he did not use alcohol or drugs. The appellate court examined the meaning of "chronic" and held that "chronic" does not necessarily mean "constant." The appellate court father’s long history of substance abuse and an evaluation that determined that he had a marijuana addiction and should be evaluated for alcohol abuse and narcotic/opiate medication abuse was sufficient evidence for the trial court’s determination of Father’s history of chronic abuse of alcohol and drugs. The appellate court also held that the trial court had sufficient evidence to find that the abuse led to Father’s inability to parent, specifically his inability to make appropriate decisions for his children, and his failed to protect them from abuse.

Father next argued that there was no evidence that his substance abuse would continue for a long and indeterminate period. The appellate court, however, said that the fact that  Father had consistently failed to abstain from drugs and alcohol despite knowing the loss of his children was imminent is evidence that he has not overcome his dependence on drugs and alcohol.

Finally, the appellate court considered whether sufficient evidence supported the trial court’s finding that severance was in the children’s best interest. The factors to consider in the trial court are: 1) whether an adoptive placement is immediately available; 2) whether the existing placement is meeting the children’s needs; and 3) whether the children are adoptable. In this case

there was evidence that the children were thriving in their placement and that the foster parents, as well as relatives of both Father and Mother were willing to adopt the children.  The appellate court concluded that the trial court had sufficient evidence to rule that termination was in the children’s best interest.

 

 

 

 

 

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What is the difference between guardianship and adoption? There are two key differences that have far-reaching consequences. First, adoption is permanent and guardianship is not quite permanent (even when called "permanent"). Second, in an adoption the birth parents become legal strangers to the child while the adoptive parents become the legal parents as if they had given birth to the child. In a guardianship, the birth parents still have parental rights and the guardian or guardians are not considered the child’s parents.

Legal Status and Decision Making

In an adoption, the birth parents have no rights or responsibilities. The adoptive parents have all rights and responsibilities that once belonged to the birth parents. For example, if the adoptive parents divorce, the family court will have to decide legal decision making, parenting time, and child support between the adoptive parents as if the child were their natural child. Adoption is a life-long, permanent relationship. The adoptive parent decides the child’s legal name, which is usually the adoptive parents’ name. The birth parents do not have the right to have any contact with the child. Therefore, the adoptive parents decide whether the birth parents will have contact with the child.

In a guardianship, the parents usually retain their parental rights. The guardian has the responsibility and right to the child’s care, custody, and supervision. The guardian acts under the juvenile court’s supervision, and must make regular reports to the court, unlike in an adoption. A guardianship is not permanent, and the juvenile court may transfer or terminate the guardianship. The parents may have visitation rights (unless the court orders otherwise) and may still make some decisions, such as religious training, but the guardian will make most other decisions, such as education, health, welfare, and most other decisions. The child will usually keep his or her name and the parents may ask the juvenile court to terminate or transfer the guardianship.

Death and Inheritance

In an adoption, the child (and the child’s descendants) has the same rights to inheritance as children naturally born to the parents. If the parents dies without a will, the adopted child and the adopted child’s children are treated as if the adopted child were born to the parents. If there is a valid will, the will establishes the adopted child’s inheritance rights just like children naturally born to the deceased. The child does not have the right to inherit from the birth parents and the birth parents do not have the right to inherit from the child (unless, of course, the birth parents have named the child as a beneficiary in a valid will or vice versa). Also, adoption assistance continues after the adoptive parents’ deaths or after the juvenile court terminates the adoptive parents’ rights.

In a guardianship, the child is not treated as the guardian’s child for inheritance purposes. The child is still the child of the parents. The child has no right of inheritance from the guardian unless through a valid will. Also, a guardianship subsidy ends upon the death or incapacity of the guardian. Finally, if the child dies, the parent has the rights to claim the body.

Adoption and Guardianship Lawyer

Thomas A. Morton is an Arizona adoption and guardianship lawyer. Adoptions and guardianships are one of the most rewarding areas of my practice because I am really helping a child.

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(602) 595-6870
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