the missouri bar fall committee meetings november 18, 2011

The Missouri BarThe Missouri Bar

Fall Committee MeetingsFall Committee Meetings

November 18, 2011November 18, 2011

Family Law SectionFamily Law SectionImmigration Law CommitteeImmigration Law CommitteeJuvenile Courts and Laws Juvenile Courts and Laws

Committee Committee

Joint CLE Joint CLE

Adoption PracticeAdoption Practiceandand

Ethical Representation Ethical Representation

1.5 CLE Credit 1.5 CLE Credit

1 Ethics Credit1 Ethics Credit

General TopicsGeneral Topics

1.1. Overview of In re C.M.B.R.Overview of In re C.M.B.R.

2.2. Process and procedure of litigating the Process and procedure of litigating the chapter 453 adoption with allegations chapter 453 adoption with allegations pled under 211.447pled under 211.447

3.3. Special considerations with Special considerations with undocumented parentsundocumented parents

4.4. Special considerations with Special considerations with undocumented children undocumented children

In re C.M.B.RIn re C.M.B.R

333 S.W.3d 793333 S.W.3d 793

Missouri Supreme CourtMissouri Supreme Court

January 25, 2011January 25, 2011

This Case Addresses Issues of:This Case Addresses Issues of:

Immigration and ResourcesImmigration and Resources

Due Process for Parents & PartiesDue Process for Parents & Parties

Access to Courts for Parents & PartiesAccess to Courts for Parents & Parties

Timely Permanency for ChildrenTimely Permanency for Children

Initial / Proper Placement of ChildrenInitial / Proper Placement of Children

Factual SummaryFactual Summary

Mother is an illegal immigrant from Guatemala.Mother is an illegal immigrant from Guatemala.She gives birth to Child on October 17, 2006, after She gives birth to Child on October 17, 2006, after entering the US (May 15, 2006).entering the US (May 15, 2006).She “parents” Child by herself until she is She “parents” Child by herself until she is arrested.arrested.She is arrested by immigration while working in a She is arrested by immigration while working in a poultry plant (May 22, 2007).poultry plant (May 22, 2007).She only speaks Spanish.She only speaks Spanish.After her arrest, she arranges for her brother After her arrest, she arranges for her brother (Child’s uncle) to provide primary care for her (Child’s uncle) to provide primary care for her infant Child but…infant Child but…

Brother moves Child to their Sister (Child’s Brother moves Child to their Sister (Child’s aunt), who later agrees to let a clergy family aunt), who later agrees to let a clergy family provide primary care for Child (time frame is provide primary care for Child (time frame is unclear from case & record).unclear from case & record).

Clergy family knows a family who wants to adopt Clergy family knows a family who wants to adopt a child (September, 2007).a child (September, 2007).

Adoptive Family meets Child (September 24, Adoptive Family meets Child (September 24, 2007).2007).

Adoptive Family starts visiting with Child Adoptive Family starts visiting with Child (October 3, 2007).(October 3, 2007).

Adoptive Family files private action Petition for Adoptive Family files private action Petition for TPR / Adoption (October 5, 2007).TPR / Adoption (October 5, 2007).

Mother pleads guilty in federal court (October Mother pleads guilty in federal court (October 11, 2007); she receives a two year sentence.11, 2007); she receives a two year sentence.

Mother is served with Adoption/TPR Petition and Mother is served with Adoption/TPR Petition and summons in jail (October 16, 2007).summons in jail (October 16, 2007).

Court schedules transfer of custody hearing; Court schedules transfer of custody hearing; Mother is not listed in notice (October 17, 2007).Mother is not listed in notice (October 17, 2007).

Transfer of Custody Hearing held & granted Transfer of Custody Hearing held & granted (October 18, 2007).(October 18, 2007).

Mother writes to counsel for Adoptive Parents, Mother writes to counsel for Adoptive Parents, protesting adoption & requesting visits (October protesting adoption & requesting visits (October 28, 2007). 28, 2007).

Court appoints first counsel for Mother Court appoints first counsel for Mother (December 3, 2007) – notice mailed to Mother in (December 3, 2007) – notice mailed to Mother in jail, but service not accepted.jail, but service not accepted.

Adoption hearing set (notice filed December 3, Adoption hearing set (notice filed December 3, 2007).2007).

Adoptive parents direct their counsel to find a Adoptive parents direct their counsel to find a new attorney who speaks Spanish for Mother new attorney who speaks Spanish for Mother and they arrange to pay the fees. New counsel and they arrange to pay the fees. New counsel appointed (June 13, 2008).appointed (June 13, 2008).

New counsel speaks one time by phone and New counsel speaks one time by phone and writes one letter to Mother.writes one letter to Mother.

Contested Adoption / TPR Trial Day Contested Adoption / TPR Trial Day (October 7, 2008)(October 7, 2008)

Three Count Petition:Three Count Petition:1.1. Transfer of Custody & TPR (§ 453.040.7)Transfer of Custody & TPR (§ 453.040.7)

2.2. TPR (§ 211.447.2.b)TPR (§ 211.447.2.b)

3.3. Grant the Adoption (in Child’s best interests).Grant the Adoption (in Child’s best interests).

Mother appeared by her counsel.Mother appeared by her counsel.

Counsel cross-examined witnesses, presented Counsel cross-examined witnesses, presented a letter from Mother and argued on her behalf.a letter from Mother and argued on her behalf.

After closing, the court granted the Petition.After closing, the court granted the Petition.

Written order followed (October 9, 2008).Written order followed (October 9, 2008).

Legal HoldingsLegal Holdings

Reversed and remandedReversed and remanded; the failure to ; the failure to investigate and file required reports, prior to trial, investigate and file required reports, prior to trial, is manifest error. Reviewed as “plain error.” is manifest error. Reviewed as “plain error.”

§211.447 & 455: §211.447 & 455: NoNo investigationinvestigation or social or social study of proposed adoptive parentsstudy of proposed adoptive parents was made was made prior to TPR being granted.prior to TPR being granted.

§453.070 & 077: §453.070 & 077: No pre & post-placement No pre & post-placement assessmentsassessments of Child with Adoptive Parents of Child with Adoptive Parents were presented to court for best interests.were presented to court for best interests.

Process of litigating the Process of litigating the Chapter 453 adoption with Chapter 453 adoption with

allegations pled under allegations pled under 211.447211.447

Adoptions pursuant to Adoptions pursuant to Chapter 453 onlyChapter 453 only

Jurisdictional Elements:Jurisdictional Elements:

Pursuant to §453.010.1, Pursuant to §453.010.1, – at least one of the following jurisdictional elements at least one of the following jurisdictional elements

exists:exists:– The person seeking to adopt resides in the county-The person seeking to adopt resides in the county-

§453.010.1(1)§453.010.1(1)– The subject child was born in the county- The subject child was born in the county-

§453.010.1(2)§453.010.1(2)– The child is found within the county at the time the The child is found within the county at the time the

petition is filed - §453.010.1(3) petition is filed - §453.010.1(3) – Either birth parent resides in the county- Either birth parent resides in the county-

§453.010.1(4)§453.010.1(4)

Jurisdictional Elements:Jurisdictional Elements:Pursuant to §453.010.3, if the child to be Pursuant to §453.010.3, if the child to be adopted is under a court’s prior and continuing adopted is under a court’s prior and continuing jurisdiction pursuant to Chapter 211, at least jurisdiction pursuant to Chapter 211, at least one of the following circumstances exists:one of the following circumstances exists:– The Petitioner has petitioned the juvenile division The Petitioner has petitioned the juvenile division

which has jurisdiction over the child for permission to which has jurisdiction over the child for permission to adopt.adopt.

– If the Petitioner is requesting any alternate venue set If the Petitioner is requesting any alternate venue set forth in §453.010.1, the Petitioner has filed a motion forth in §453.010.1, the Petitioner has filed a motion with the juvenile division and the receiving court has with the juvenile division and the receiving court has provided consent before jurisdiction is transferred to a provided consent before jurisdiction is transferred to a juvenile division in an alternative venue permitted juvenile division in an alternative venue permitted under §453.010.1under §453.010.1

Other Jurisdictional Elements Other Jurisdictional Elements

Interstate Compact on the Placement of Interstate Compact on the Placement of Children applies (see §210.620 et seq.)Children applies (see §210.620 et seq.)

Indian Child Welfare Act applies (see 25 Indian Child Welfare Act applies (see 25 U.S.C. §1901 et seq, regarding the U.S.C. §1901 et seq, regarding the applicability of ICWA and tribal notice and applicability of ICWA and tribal notice and service requirements)service requirements)

What are § What are § 211.447 grounds?211.447 grounds?


Information available to the juvenile officer Information available to the juvenile officer or the division establishes that the child or the division establishes that the child has been in foster care for at least fifteen has been in foster care for at least fifteen of the most recent twenty-two months; of the most recent twenty-two months;


Information available to the juvenile officer Information available to the juvenile officer or the division establishes that the child or the division establishes that the child has been in foster care for at least fifteen has been in foster care for at least fifteen of the most recent twenty-two months; of the most recent twenty-two months;

A court of competent jurisdiction has A court of competent jurisdiction has determined the child to be an abandoned determined the child to be an abandoned infant. For purposes of this subdivision, an infant. For purposes of this subdivision, an "infant" means any child one year of age "infant" means any child one year of age or under at the time of filing of the petition. or under at the time of filing of the petition.


A court of competent jurisdiction has A court of competent jurisdiction has determined that the parent has: determined that the parent has:


A court of competent jurisdiction has A court of competent jurisdiction has determined that the parent has: determined that the parent has: – Committed murder of another child of the Committed murder of another child of the

parent; parent;



parent; or parent; or – Committed voluntary manslaughter of another Committed voluntary manslaughter of another

child of the parent; child of the parent;



parent; or parent; or – Committed voluntary manslaughter of another Committed voluntary manslaughter of another

child of the parent; or child of the parent; or – Aided or abetted, attempted, conspired or Aided or abetted, attempted, conspired or

solicited to commit such a murder or voluntary solicited to commit such a murder or voluntary manslaughtermanslaughter

What are § What are § 211.447 grounds?211.447 grounds?A court of competent jurisdiction has determined that A court of competent jurisdiction has determined that the parent has: the parent has: – Committed murder of another child of the parent; Committed murder of another child of the parent;

or or – Committed voluntary manslaughter of another Committed voluntary manslaughter of another

child of the parent; or child of the parent; or – Aided or abetted, attempted, conspired or solicited Aided or abetted, attempted, conspired or solicited

to commit such a murder or voluntary to commit such a murder or voluntary manslaughter ; ormanslaughter ; or

– Committed a felony assault that resulted in serious Committed a felony assault that resulted in serious bodily injury to the child or to another child of the bodily injury to the child or to another child of the parentparent


The child has been abandoned. For The child has been abandoned. For purposes of this subdivision a "child" purposes of this subdivision a "child" means any child over one year of age at means any child over one year of age at the time of filing of the petition. the time of filing of the petition.


The child has been abused or neglected. The child has been abused or neglected. – The Court must make findings on four specific The Court must make findings on four specific

conditions or acts of the parent relating to;conditions or acts of the parent relating to;Mental ConditionMental Condition

Chemical DependencyChemical Dependency

Severe act of AbuseSevere act of Abuse

Repeated or Continuous failure to provide for the Repeated or Continuous failure to provide for the childchild


The child has been under the jurisdiction of the juvenile The child has been under the jurisdiction of the juvenile court for a period of one year, and the court finds that the court for a period of one year, and the court finds that the conditions which led to the assumption of jurisdiction still conditions which led to the assumption of jurisdiction still persist, or conditions of a potentially harmful nature persist, or conditions of a potentially harmful nature continue to exist, that there is little likelihood that those continue to exist, that there is little likelihood that those conditions will be remedied at an early date so that the conditions will be remedied at an early date so that the child can be returned to the parent in the near future, or child can be returned to the parent in the near future, or the continuation of the parent-child relationship greatly the continuation of the parent-child relationship greatly diminishes the child's prospects for early integration into diminishes the child's prospects for early integration into a stable and permanent homea stable and permanent home

The Court must consider and make specific findings The Court must consider and make specific findings


The parent has been found guilty or pled guilty The parent has been found guilty or pled guilty to a felony violation of chapter 566 when the to a felony violation of chapter 566 when the child or any child in the family was a victim, or a child or any child in the family was a victim, or a violation of section 568.020 when the child or violation of section 568.020 when the child or any child in the family was a victim. As used in any child in the family was a victim. As used in this subdivision, a "child" means any person who this subdivision, a "child" means any person who was under eighteen years of age at the time of was under eighteen years of age at the time of the crime and who resided with such parent or the crime and who resided with such parent or was related within the third degree of was related within the third degree of consanguinity or affinity to such parentconsanguinity or affinity to such parent


The child was conceived and born as a The child was conceived and born as a result of an act of forcible rape. When the result of an act of forcible rape. When the biological father has pled guilty to, or is biological father has pled guilty to, or is convicted of, the forcible rape of the birth convicted of, the forcible rape of the birth mother, such a plea or conviction shall be mother, such a plea or conviction shall be conclusive evidence supporting the conclusive evidence supporting the termination of the biological father's termination of the biological father's parental rightsparental rights


The parent is unfit to be a party to the parent and child The parent is unfit to be a party to the parent and child relationship because of a consistent pattern of relationship because of a consistent pattern of committing a specific abuse, including but not limited to, committing a specific abuse, including but not limited to, abuses as defined in section 455.010, child abuse or abuses as defined in section 455.010, child abuse or drug abuse before the child or of specific conditions drug abuse before the child or of specific conditions directly relating to the parent and child relationship either directly relating to the parent and child relationship either of which are determined by the court to be of a duration of which are determined by the court to be of a duration or nature that renders the parent unable, for the or nature that renders the parent unable, for the reasonably foreseeable future, to care appropriately for reasonably foreseeable future, to care appropriately for the ongoing physical, mental or emotional needs of the the ongoing physical, mental or emotional needs of the childchild

Additional Elements of 211.447Additional Elements of 211.447

The juvenile court may terminate the rights of a The juvenile court may terminate the rights of a parent to a child upon a petition filed by the parent to a child upon a petition filed by the juvenile officer or the division, or in adoption juvenile officer or the division, or in adoption cases, by a prospective parent, if the court finds cases, by a prospective parent, if the court finds that the termination is in the best interest of the that the termination is in the best interest of the child and when it appears by clear, cogent and child and when it appears by clear, cogent and convincing evidence that grounds exist for convincing evidence that grounds exist for termination pursuant to subsection 2, 4 or 5 of termination pursuant to subsection 2, 4 or 5 of this section. this section.


The court shall evaluate and make findings on The court shall evaluate and make findings on the following factors, when appropriate and the following factors, when appropriate and applicable to the case: applicable to the case: – (1) The emotional ties to the birth parent; (1) The emotional ties to the birth parent; – (2) The extent to which the parent has (2) The extent to which the parent has

maintained regular visitation or other contact maintained regular visitation or other contact with the child; with the child;


The court shall evaluate and make findings on The court shall evaluate and make findings on the following factors, when appropriate and the following factors, when appropriate and applicable to the case: applicable to the case: – (3) The extent of payment by the parent for the cost of (3) The extent of payment by the parent for the cost of

care and maintenance of the child when financially care and maintenance of the child when financially able to do so including the time that the child is in the able to do so including the time that the child is in the custody of the division or other child-placing agency; custody of the division or other child-placing agency;


The court shall evaluate and make findings on The court shall evaluate and make findings on the following factors, when appropriate and the following factors, when appropriate and applicable to the case: applicable to the case: – (4) Whether additional services would be likely to (4) Whether additional services would be likely to

bring about lasting parental adjustment enabling a bring about lasting parental adjustment enabling a return of the child to the parent within an return of the child to the parent within an ascertainable period of time; ascertainable period of time;

– (5) The parent's disinterest in or lack of commitment (5) The parent's disinterest in or lack of commitment to the child; to the child;


The court shall evaluate and make findings on The court shall evaluate and make findings on the following factors, when appropriate and the following factors, when appropriate and applicable to the case: applicable to the case: – (6) The conviction of the parent of a felony offense (6) The conviction of the parent of a felony offense

that the court finds is of such a nature that the child that the court finds is of such a nature that the child will be deprived of a stable home for a period of will be deprived of a stable home for a period of years; provided, however, that incarceration in and of years; provided, however, that incarceration in and of itself shall not be grounds for termination of parental itself shall not be grounds for termination of parental rights; rights;


The court shall evaluate and make findings on The court shall evaluate and make findings on the following factors, when appropriate and the following factors, when appropriate and applicable to the case: applicable to the case: – (7) Deliberate acts of the parent or acts of another of (7) Deliberate acts of the parent or acts of another of

which the parent knew or should have known that which the parent knew or should have known that subjects the child to a substantial risk of physical or subjects the child to a substantial risk of physical or mental harm. mental harm.

Why file § Why file § 211.447 grounds in 211.447 grounds in your Chapter 453 adoption?your Chapter 453 adoption?

Chapter 453 AdoptionChapter 453 Adoption

FOR ADOPTION OF A CHILD UNDER FOR ADOPTION OF A CHILD UNDER AGE OF 18 YEARS:AGE OF 18 YEARS:– Consent of adoptee Consent of adoptee

If over 14 years (§453.030.2)If over 14 years (§453.030.2)

– The child’s mother The child’s mother – The child’s current adoptive parentsThe child’s current adoptive parents– Other legally recognized mother or fatherOther legally recognized mother or father

Chapter 453 AdoptionChapter 453 AdoptionFOR ADOPTION OF A CHILD UNDER AGE OF 18 YEARS:FOR ADOPTION OF A CHILD UNDER AGE OF 18 YEARS:

Only the man who:Only the man who:– §453.030.3(2)(a) -- is presumed to be the father pursuant to §453.030.3(2)(a) -- is presumed to be the father pursuant to

subdivision (1), (2) or (3) of §210.822, orsubdivision (1), (2) or (3) of §210.822, or– §453.030.3(2)(b) -- has filed an action to establish his paternity §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 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 the birth of the child and has served a copy of the petition on the mother in accordance with §506.100, ormother in accordance with §506.100, or

– §453.030.3(2)(c) -- has filed with the putative father registry §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 pursuant to §192.016, a notice of intent to claim paternity or an acknowledgment of paternity either prior to or within fifteen days acknowledgment of paternity either prior to or within fifteen days after the child’s birth, and has filed an action to establish his after the child’s birth, and has filed an action to establish his paternity in a court of competent jurisdiction no later than fifteen paternity in a court of competent jurisdiction no later than fifteen days after the birth of the childdays after the birth of the child

Consent not required from: Consent not required from:

§453.040(1) - a parent whose rights with §453.040(1) - a parent whose rights with reference to the child have been reference to the child have been terminated pursuant to law;terminated pursuant to law;

§453.040(2) -- a parent who has legally §453.040(2) -- a parent who has legally consented to a further adoption of the consented to a further adoption of the child;child;

§453.040(3) -- a parent whose identity is §453.040(3) -- a parent whose identity is unknown and cannot be ascertained at the unknown and cannot be ascertained at the time of the filing of the petition;time of the filing of the petition;


§453.040(4) -- a man who has not been §453.040(4) -- a man who has not been established to be the father and who is not established to be the father and who is not presumed by law to be the father, and who presumed by law to be the father, and who after the conception of the child, executes after the conception of the child, executes a verified statement denying paternity and a verified statement denying paternity and disclaiming any interest in the child and disclaiming any interest in the child and acknowledging that this statement is acknowledging that this statement is irrevocable when executed and follows the irrevocable when executed and follows the consent as set forth in §453.030;consent as set forth in §453.030;


§453.040(5) -- a parent or other person §453.040(5) -- a parent or other person who has not executed a consent and who, who has not executed a consent and who, after proper service of process, fails to file after proper service of process, fails to file an answer or make an appearance in a an answer or make an appearance in a proceeding for adoption or for termination proceeding for adoption or for termination of parental rights at the time such cause is of parental rights at the time such cause is heardheard


§453.040(6) -- a parent who has a mental §453.040(6) -- a parent who has a mental condition which is shown by competent condition which is shown by competent evidence either to be permanent or such evidence either to be permanent or such that there is no reasonable likelihood that that there is no reasonable likelihood that the condition can be reversed, and which the condition can be reversed, and which renders the parent unable to knowingly renders the parent unable to knowingly provide the child the necessary care, provide the child the necessary care, custody and control;custody and control;


§453.040(7) -- a parent who has for a period of §453.040(7) -- a parent who has for a period of at least six months for a child one year of age or at least six months for a child one year of age or older, or at least sixty days for a child under one older, or at least sixty days for a child under one year of age, immediately prior to the filing of the year of age, immediately prior to the filing of the petition for adoption, willfully abandoned the petition for adoption, willfully abandoned the child or for a period of at least six months child or for a period of at least six months immediately prior to the filing of the petition for immediately prior to the filing of the petition for adoption, willfully, substantially and continuously adoption, willfully, substantially and continuously neglected to provide him with necessary care neglected to provide him with necessary care and protection; and protection;


§453.040(8) -- a parent whose rights to the §453.040(8) -- a parent whose rights to the child may be terminated for any of the child may be terminated for any of the grounds set forth in §211.447, and whose grounds set forth in §211.447, and whose rights have been terminated after hearing rights have been terminated after hearing and proof of such grounds as required by and proof of such grounds as required by §§211.442-211.487.§§211.442-211.487.

What is a Consent?What is a Consent?

Do the forms comply with §453.030.4-Do the forms comply with §453.030.4-§453.030.9?§453.030.9?

Children’s Division Form CD 48 OR CD49 Children’s Division Form CD 48 OR CD49 utilized utilized – Forms may be found at: Forms may be found at:

http://www.dss.mo.gov/cd/info/forms/

Why Are Assessments Needed?Why Are Assessments Needed?§453.070.1 (pre-placement) and §453.077.1 (post – §453.070.1 (pre-placement) and §453.077.1 (post – placement) are required prior to adoption decrees being placement) are required prior to adoption decrees being granted. granted. The court was provided only with a report as to whether The court was provided only with a report as to whether the adoptive parents were suitable as “foster parents” the adoptive parents were suitable as “foster parents” (they were not suitable). (they were not suitable). No report informed the court No report informed the court about “Best Interests” Factors, about “Best Interests” Factors, such as: such as:

1.1. The The child’s suitabilitychild’s suitability for adoption, or for adoption, or2.2. Adoptive family’s fitnessAdoptive family’s fitness to be adoptive parents, or to be adoptive parents, or3.3. The The child’s post-placement adjustmentchild’s post-placement adjustment with adoptive with adoptive

family, orfamily, or4.4. The The adoptive family’s post-placement adjustmentadoptive family’s post-placement adjustment to to

Child.Child.

Chapter 453 Chapter 453 Required DocumentsRequired Documents

Assessment of adoptive parents pursuant Assessment of adoptive parents pursuant to §453.070 to be completed by to §453.070 to be completed by ____________(person/agency), and to be ____________(person/agency), and to be submitted to the court prior to transfer of submitted to the court prior to transfer of custody pursuant §453.110.6 custody pursuant §453.110.6


Post – Placements Assessments pursuant Post – Placements Assessments pursuant to §453.077 to be completed by to §453.077 to be completed by _____________ (person/agency) and _____________ (person/agency) and submitted to the courtsubmitted to the court


The person placing the child for adoption The person placing the child for adoption shall provide a written report regarding the shall provide a written report regarding the child pursuant to §453.026 before the child pursuant to §453.026 before the prospective adoptive parent accepts prospective adoptive parent accepts physical custody of the child (Subject to physical custody of the child (Subject to application of §453.110.5) to:application of §453.110.5) to:– The CourtThe Court– The Guardian ad LitemThe Guardian ad Litem– The prospective adoptive parentThe prospective adoptive parent

Additional Required Documents Additional Required Documents when 211.447 grounds are pledwhen 211.447 grounds are pled

investigation and social study pursuant to investigation and social study pursuant to §211.455(3) to be completed by §211.455(3) to be completed by _____________ (agency/person)_____________ (agency/person)– The following parties shall have access to the The following parties shall have access to the

investigation and social study at least 15 days prior to investigation and social study at least 15 days prior to any dispositional hearing, i.e., the trial:any dispositional hearing, i.e., the trial:

– PartiesParties– AttorneysAttorneys– GALGAL– Volunteer advocates Volunteer advocates

Additional Procedural Steps Additional Procedural Steps when 211.447 grounds are pledwhen 211.447 grounds are pled

Has notice been provided to the Juvenile Officer Has notice been provided to the Juvenile Officer and/or the Children’s Division that allegations and/or the Children’s Division that allegations under §211.447 have been pled? under §211.447 have been pled? – Joinder of Necessary Parties Joinder of Necessary Parties

Juvenile Officer Juvenile Officer

Children’s Division Children’s Division

Meeting with the juvenile officer to determine Meeting with the juvenile officer to determine whether all proper parties have been served whether all proper parties have been served (within 30 days of filing the petition) - §211.455.1(within 30 days of filing the petition) - §211.455.1

Service of Process Service of Process Requirements: Service of Requirements: Service of

Process pursuant to Process pursuant to §506.100 §506.100

Service of Process Requirements:Service of Process Requirements:

Service of Process Requirements:Service of Process Requirements:– Any person, agency, organization or Any person, agency, organization or

institution whose consent to the adoption is institution whose consent to the adoption is required by law, unless consent is filed in required by law, unless consent is filed in court; §453.060.1(1)court; §453.060.1(1)


Service of Process Requirements:Service of Process Requirements:– Any person whose consent to the adoption, Any person whose consent to the adoption,

according to the allegation of the petition for according to the allegation of the petition for adoption, is not required for the reasons set adoption, is not required for the reasons set forth in subdivision (6) or (7) of §453.040; forth in subdivision (6) or (7) of §453.040; §453.060.1(2);§453.060.1(2);


Service of Process Requirements:Service of Process Requirements:– Any person, agency, organization or Any person, agency, organization or

institution, within or without the state, having institution, within or without the state, having custody of the child sought to be adopted custody of the child sought to be adopted under a decree of a court of competent under a decree of a court of competent jurisdiction even though its consent to the jurisdiction even though its consent to the adoption is not required by law; adoption is not required by law; §453.060.1(3);§453.060.1(3);


Service of Process Requirements:Service of Process Requirements:– Any legally appointed guardian of the child; Any legally appointed guardian of the child;

§453.060.1(4);§453.060.1(4);– Any person adjudicated by a court of this Any person adjudicated by a court of this

state or another state, a territory of the U.S. or state or another state, a territory of the U.S. or another country to be the father of the child another country to be the father of the child §453.060.1(5); §453.060.1(5);


Service of Process Requirements:Service of Process Requirements:– Any person who has timely filed a notice of Any person who has timely filed a notice of

intent to claim paternity of the child pursuant intent to claim paternity of the child pursuant to §192.016; andto §192.016; and

– Any person who has timely filed an Any person who has timely filed an acknowledgment of paternity pursuant to acknowledgment of paternity pursuant to §193.087§193.087


In a Chapter 453 Adoption with allegations In a Chapter 453 Adoption with allegations pled under §211.447 – pled under §211.447 – in additionin addition to to persons required to be served under persons required to be served under Chapter 453 pursuant to §211.453.2 – Chapter 453 pursuant to §211.453.2 – service of process is required on:service of process is required on:

Service of Process Requirements with 211.447 Service of Process Requirements with 211.447

Grounds Grounds ::The child’s parent(s) (as defined in §211.442(3)) - The child’s parent(s) (as defined in §211.442(3)) - §211.453.2(1);§211.453.2(1);– The biological parent(s) of a child The biological parent(s) of a child – The husband of the natural mother at the time the child was The husband of the natural mother at the time the child was

conceivedconceived– The child’s parent(s) by adoptionThe child’s parent(s) by adoption– The child’s motherThe child’s mother– The putative father of a child shall have no legal relationship The putative father of a child shall have no legal relationship

unless he, prior to the entry of a decree under §211.442 to unless he, prior to the entry of a decree under §211.442 to §211.487, has acknowledged the child as his own by §211.487, has acknowledged the child as his own by affirmatively asserting his paternity.affirmatively asserting his paternity.


Grounds Grounds ::

The putative father who has The putative father who has acknowledged the child as his own by acknowledged the child as his own by affirmatively asserting his paternity, unless affirmatively asserting his paternity, unless the parent has filed a consent to the the parent has filed a consent to the termination of parents rights in court; termination of parents rights in court; §211.453.2(1);§211.453.2(1);


Grounds Grounds ::

Guardian of person of the child; Guardian of person of the child; §211.453.2(2);§211.453.2(2);

A person, Agency or organization having A person, Agency or organization having custody of the child; §211.453.2(3);custody of the child; §211.453.2(3);


Grounds Grounds ::

A foster parent, relative or other person A foster parent, relative or other person with whom the child has been placed; with whom the child has been placed; §211.453.2(4); and §211.453.2(4); and

Any other person whose presences the Any other person whose presences the court deems necessary; §211.453.2(5)court deems necessary; §211.453.2(5)


Grounds Grounds ::

If a parent’s identity is unknown and If a parent’s identity is unknown and cannot be ascertained or cannot be cannot be ascertained or cannot be located, no service is required; §211.453.3located, no service is required; §211.453.3

Service waived or Service waived or Entry of AppearanceEntry of Appearance filed by a person required to received filed by a person required to received summons; §211.453.4summons; §211.453.4


Grounds Grounds ::

Service by publication requested if service Service by publication requested if service of process cannot be made in the manner of process cannot be made in the manner prescribed in §506.150; such service shall prescribed in §506.150; such service shall be made by mail or publication as be made by mail or publication as provided in section; §506.160provided in section; §506.160

Practical ApplicationPractical Application

Larger Issues: Due Process – Larger Issues: Due Process – Notice of Proceedings:Notice of Proceedings:

What are court’s obligations to provide What are court’s obligations to provide notice to incarcerated parents?notice to incarcerated parents?

To parents incarcerated out of state?To parents incarcerated out of state?

To illegal immigrants?To illegal immigrants?

To parents who do not speak English?To parents who do not speak English?

To parents who are educationally limited?To parents who are educationally limited?

To parents who have cultural limitations?To parents who have cultural limitations?

Larger Issues: Due Process – Larger Issues: Due Process – Parent’s Opportunity to ParticipateParent’s Opportunity to Participate

What are a court’s obligations to ensure What are a court’s obligations to ensure that a parent can that a parent can be presentbe present in court, or in court, or

That a parent can That a parent can understandunderstand what is what is being said and done in court?being said and done in court?

That a parent can That a parent can meaningfully participatemeaningfully participate in court proceedings?in court proceedings?

How to balance these against a child’s How to balance these against a child’s need for permanency?need for permanency?

Right to Counsel Right to Counsel

§453.030.12§453.030.12

A birth parent, including a birth parent less than A birth parent, including a birth parent less than eighteen years of age, shall have the right to eighteen years of age, shall have the right to legal representation and payment of any legal representation and payment of any reasonable legal fees incurred throughout the reasonable legal fees incurred throughout the adoption process.adoption process.


The Court may appoint counsel to represent the The Court may appoint counsel to represent the birth parent pursuant to §453.030.12 if:birth parent pursuant to §453.030.12 if:– The birth parent requests representation,The birth parent requests representation,– The court finds that hiring an attorney to represent the The court finds that hiring an attorney to represent the

birth parent would cause a financial hardship for the birth parent would cause a financial hardship for the birth parent, andbirth parent, and

– The birth parent is not already represented by The birth parent is not already represented by counsel.counsel.


Payment of attorney fees for the birth parent: Payment of attorney fees for the birth parent: Except where the court determines that the Except where the court determines that the adoptive parents are unable to pay reasonable adoptive parents are unable to pay reasonable attorney fees and appoints pro bono counsel for attorney fees and appoints pro bono counsel for the birth parent, the court shall order the costs of the birth parent, the court shall order the costs of the attorney fees incurred pursuant to the attorney fees incurred pursuant to §453.040(5)453.030.12 to be paid by the §453.040(5)453.030.12 to be paid by the prospective adoptive parents or the child-placing prospective adoptive parents or the child-placing agency.agency.

Additional Rights to CounselAdditional Rights to Counsel

Chapter 211Chapter 211

Additional Rights to CounselAdditional Rights to Counsel§211.211§211.211

)) §211.211.1-A party is entitled to be represented by §211.211.1-A party is entitled to be represented by counsel in all proceedings. counsel in all proceedings.

§211.221.4-When a child’s custodian appears before the §211.221.4-When a child’s custodian appears before the court without counsel, the court shall appoint counsel for court without counsel, the court shall appoint counsel for the custodian if it finds:the custodian if it finds:

The custodian is indigent, §211.221.4(1);The custodian is indigent, §211.221.4(1);

Custodian desires the appointment of counsel, Custodian desires the appointment of counsel, §211.221.4(2); and§211.221.4(2); and

A full and fair hearing requires the appointment of A full and fair hearing requires the appointment of

counsel for the custodian §211.221.4(counsel for the custodian §211.221.4(33

Additional Rights to CounselAdditional Rights to Counsel§211.462§211.462

Notification to parent, or guardian of the person Notification to parent, or guardian of the person of the child, of the right to have counselof the child, of the right to have counsel

The court shall appoint counsel if the child’s The court shall appoint counsel if the child’s parent or guardian of the person of the child:parent or guardian of the person of the child:– requests counsel, and requests counsel, and – is financially unable to employ counsel is financially unable to employ counsel

Due Process – Right to Counsel - Due Process – Right to Counsel - Parent Must Request:Parent Must Request:

““The parent… shall be notified of the right to have The parent… shall be notified of the right to have counsel, and counsel, and if they request counselif they request counsel…, …, counsel counsel shall be appointed by the court.” §211.462.2.shall be appointed by the court.” §211.462.2.

““12. A birth parent… 12. A birth parent… shall have the rightshall have the right to legal to legal representationrepresentation and payment of any reasonable and payment of any reasonable legal fees incurred…In addition, the court legal fees incurred…In addition, the court maymay appoint counsel… appoint counsel… if:if: (1). (1). A birth parent requestsA birth parent requests representation;” § 453.030.12.representation;” § 453.030.12.

Due Process – Right to Counsel - Due Process – Right to Counsel - Parent Must Request:Parent Must Request:

Mother never asked for counsel. Was this Mother never asked for counsel. Was this due to:due to:

• Her lack of interest in her child, orHer lack of interest in her child, or• Her incarceration status, orHer incarceration status, or• Her inability to speak English, or Her inability to speak English, or • Her lack of access to interpreters, orHer lack of access to interpreters, or• Her failure to appreciate the seriousness Her failure to appreciate the seriousness

of her situation?of her situation?

Due Process – Right to CounselDue Process – Right to Counsel

Each concurring opinion wrote strongly for Each concurring opinion wrote strongly for reversal but no remand for new trial (just reversal but no remand for new trial (just return Child to Mother directly) – troubled return Child to Mother directly) – troubled in part by issues of mother’s lack of in part by issues of mother’s lack of access to counsel who was:access to counsel who was:

–1. 1. effectiveeffective, and, and

– 2. 2. conflict-freeconflict-free

Due Process – Right to CounselDue Process – Right to Counsel

EffectiveEffective counsel: counsel:Mother’s counsel did not object to lack of Mother’s counsel did not object to lack of reports.reports.Did not object to hearsay evidence at trial.Did not object to hearsay evidence at trial.Did not present evidence on her behalf (which Did not present evidence on her behalf (which was presented to MO Supreme Court, but was was presented to MO Supreme Court, but was held as “outside the record” because it was not held as “outside the record” because it was not presented at trial).presented at trial).Did not object to lack of service on Mother.Did not object to lack of service on Mother.Did not file a timely notice of appeal.Did not file a timely notice of appeal.

Due Process – Right to Counsel Due Process – Right to Counsel

Conflict-FreeConflict-Free counsel: counsel:Mother’s counsel was located and retained Mother’s counsel was located and retained by Adoptive Family through their counsel, by Adoptive Family through their counsel, who promised to pay his fees.who promised to pay his fees.Information outside the trial record: Information outside the trial record: Mother’s counsel received written Mother’s counsel received written information, advice and instructions from information, advice and instructions from Adoptive Parents’ Counsel before he met Adoptive Parents’ Counsel before he met with his client.with his client.

Due Process – Right to Counsel – Due Process – Right to Counsel – Ethical Questions:Ethical Questions:

Who pays for parental counsel if adoptive Who pays for parental counsel if adoptive families should not?families should not?

Can a parent consent or waive the Can a parent consent or waive the apparent conflict of interest to facilitate the apparent conflict of interest to facilitate the adoption?adoption?

What should a court do if parents request What should a court do if parents request counsel in a contested §453 adoption, but counsel in a contested §453 adoption, but cannot pay?cannot pay?

Due Process – Right to Counsel Due Process – Right to Counsel – Ethical Questions:– Ethical Questions:

Continuing Educational Issues for Continuing Educational Issues for AttorneysAttorneys

Impact on parents rights in adoptions Impact on parents rights in adoptions when they are unrepresented in 211.031 when they are unrepresented in 211.031 mattersmatters

How does a Petitioner insure birth parents How does a Petitioner insure birth parents are properly represented without creating are properly represented without creating a conflict of interest?a conflict of interest?

Special ConsiderationsSpecial Considerations

Undocumented ParentsUndocumented Parents

Special Considerations Special Considerations Undocumented ParentsUndocumented Parents

Impact of threat of deportationImpact of threat of deportation Impact of incarceration prior to deportationImpact of incarceration prior to deportation Impact of deportationImpact of deportation Use of Alias Use of Alias Native Language IssuesNative Language Issues Lack of familiarity with Court Systems Lack of familiarity with Court Systems

Special ConsiderationsSpecial Considerations

Undocumented ChildrenUndocumented Children

Special Considerations Special Considerations Undocumented Children Undocumented Children

Impact of adoption on US citizenshipImpact of adoption on US citizenship Notice requirements to Child’s country of originNotice requirements to Child’s country of origin Understanding and documentation of parentage Understanding and documentation of parentage

of undocumented childrenof undocumented children

The EndThe End

the missouri bar fall committee meetings november 18, 2011

Documents

tpr adoption

ethics credit slide

infant child

new counsel

undocumented parents

clergy family

factual summary mother

adoption practice