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The Nonprofit Gazette
Why is CPS visiting my family?
State law requires anybody who believes that a child has been abused or neglected to
make a report to the Child Protective Services (CPS) program of the Texas Department of Family and Protective Services (DFPS)
or to a law enforcement agency. The law requires CPS to investigate reports of child abuse or neglect for the primary purpose
of protecting children.
What is Child Protective Services?
The CPS program receives, investigates, or assesses reports of child abuse and neglect
by parents, family, or household members. CPS offers services after investigations if:
children are not immediately safe from abuse or neglect; or
a reasonable likelihood exists that children will be abused
or neglected in the foreseeable future, and families have demonstrated that they cannot control factors placing children at
risk of abuse or neglect.
If needed, services are offered to parents to help them solve their problems and learn how to
care for and discipline their children in ways that do not harm them or place them at risk of abuse or neglect. These services
may include counseling, day care, homemaker, evaluation and treatment, and parenting training.
What does CPS do in a child abuse or neglect investigation?
When investigating a report, a caseworker usually:
talks to and visually examines the child reported to have been abused or neglected. The talk with the child must be audio
taped or videotaped. The interview may be conducted at any reasonable time and place, including at school. The caseworker
may transport the child for purposes relating to the interview or examination and must notify the child’s parent of
the transportation.
makes a reasonable effort to notify you of any interviews and the nature of the allegations within
24 hours after an interview has taken place.
discusses the report with you to gain an explanation about the harm or risk
of abuse or neglect to the child. You can ask to see the caseworker’s DFPS identification card. The caseworker will
tell you how he or she can be contacted during the investigation. It is illegal for the caseworker to tell you who made the
report.
obtains criminal history information about people alleged to have abused or neglected your child. As necessary,
the caseworker may also:
interview and visually examine all children in the home;
interview any other person alleged
to have abused or neglected your child;
interview anyone with information about the situation, including those who can
verify explanations of the harm to your child;
ask for access to mental health records on your child, yourself, or people
alleged to have abused or neglected your child;
ask for a medical, psychological, or psychiatric examination of your child
if it is necessary to establish whether abuse or neglect has occurred or if risk of abuse or neglect exists; and
visit
the child’s home.
We hope that you will cooperate with the caseworker in taking these steps, which are authorized
by law to complete the investigation. However, if necessary, CPS has the authority to ask a court for an order giving the
caseworker permission to talk to or examine your children, visit your home, or receive health records.
How long does it take to complete the investigation?
The caseworker normally completes the investigation in 30 days.
As a result of the investigation, the caseworker will decide if:
abuse or neglect occurred; and
the child is at risk of abuse or neglect.
If it has been determined that the child
is at risk of abuse or neglect, the caseworker will decide if:
immediate safety services are needed; and
ongoing treatment services are needed to reduce the risk of abuse or neglect.
The caseworker will get approval regarding these decisions from his or her supervisor and then will inform you about them.
What does risk of child abuse and neglect mean?
Children are at risk of abuse or neglect when there is a reasonable
likelihood that they will be abused or neglected, as defined by the Texas Family Code, in the foreseeable future.
Will CPS take my child away?
CPS believes that children should not be removed from their homes except to protect them
from abuse or neglect and when there are no reasonable efforts CPS can make to provide for the children’s safety and
prevent their removal. CPS is allowed by law to remove children for abuse and neglect or for being at risk of abuse or neglect
only after a court orders it or when there is no time consistent with the health and safety of the child to obtain a court
order and the person taking possession of the child has sufficient knowledge or reason to believe:
there is an immediate danger to the physical health or safety of the child;
the child has been the victim of sexual
abuse;
the person with possession of the child is currently using a controlled substance and the use constitutes an immediate
danger to the physical health or safety of the child; or
the person with possession of the child has permitted the child
to remain on premises used for the manufacture of methamphetamines.
If your child is removed from your care without a
court order, the court will schedule a hearing for the next working day. When children are removed, the parents will be asked
to complete a Child Placement Resources Form in order to provide the names of three people who could care for their child
while the parents participate in services.
Do I need a lawyer? How do I get one?
You have the right to consult with a lawyer at any point in the investigation
at your own expense. If CPS files a lawsuit requesting Temporary Managing Conservatorhip and you don’t agree, the Court
will determine if you are financially able to hire your own attorney, or whether to appoint one to represent you. In some
communities legal aid may be available, and you can contact the local bar association or call Lawyer Referral Service, State
Bar of Texas 1-800-252-9690. CPS staff are prohibited by law from giving legal advice.
Who will know what is in CPS records about me?
Because the law requires CPS to keep the report and investigation confidential
from the public, information is given only to the people who were investigated, the victim’s parents, law enforcement
officials, courts, and county or district attorneys. CPS will share information with providers and others as necessary for
services to be provided. For example, a therapist will need to know details of the abuse and neglect in order to provide counseling.
Relatives or other individuals with whom a child is placed will be given any information the department considers necessary
to ensure that the relative or other individual is prepared to meet the needs of the child. This may include information related
to any abuse or neglect suffered by the child. The law does not allow CPS to give you the name of the person who made the
report of child abuse or neglect or whose life or safety may be endangered by their being identified. You can obtain, at your
expense, a copy of the report with investigation information concerning you unless:
releasing the information would jeopardize an ongoing criminal investigation or the child’s safety; or
court
proceedings are pending and the attorney representing CPS has determined that CPS cannot give the information to you.
The
cost of the copy is determined by DFPS, using established rates.
What does the law enforcement agency do with the report?
The law requires CPS to notify law enforcement agencies of
all reports of alleged abuse or neglect. The law enforcement agency determines, separate from CPS, whether to conduct a criminal
investigation and whether a criminal violation occurred. You can contact the local law enforcement agency if you have questions
about a criminal investigation. You can also contact local law enforcement if you feel that a false report has been made against
you.
What can I do if I disagree with the conduct or findings of the CPS investigation?
Speak to the caseworker. An open
discussion may settle the matter. If your concerns cannot be resolved with the caseworker, you should discuss your concerns
with the supervisor. The person whom CPS believes to be responsible for the abuse or neglect has the right to request an administrative
review of the investigation findings, unless a court has upheld the findings. You can ask the caseworker or the supervisor
for a form on which to request such a review. If court proceedings are pending, CPS postpones the review until the court proceedings
have been completed. The person who is alleged but is not found to have committed abuse or neglect has the right to request
that information concerning his or her alleged role in the case be removed from the investigation case information. You can
ask the caseworker or supervisor for a form on which to request role removal.
The Texas Department of Family and Protective Services (DFPS) Office of Consumer Affairs handles case-specific complaints
relating to programs including Child Protective Services, Adult Protective Services, and Child Care Licensing. You may contact
the Office of Consumer Affairs at the following numbers: toll free 1-800-720-7777, fax (512) 339-5892, or e-mail address oca@dfps.state.tx.us
References
References to the law in this pamphlet are primarily from the Texas Family Code, Chapter 261, Investigation
of Report of Child Abuse or Neglect; Chapter 262, Procedures in Suit by Governmental Entity to Protect Health and Safety of
Child; Chapter 263, Review of Placement of Children under Care of the Department of Family and Protective Services; the Texas
Administrative Code and the CPS Handbook. For additional information about the Texas Department of Family and Protective Services,
visit our web site.
The Americans with Disabilities Act Compliance Coordinator can be reached at:
Texas Health and Human Services
Commission Civil Rights Office
701 W. 51st St., Suite 104 West
Austin, Texas 78751
(512) 438-4313 or 1-888-388-6332
TDD
for persons with hearing impairments (512) 438-2960
The National Domestic Violence Hotline
1-800-799-SAFE (7233)
TDD for persons with hearing impairments 1-800-787-3224
Family
violence is an act by a member of a family or household against another member of the family or household that is intended
to result in physical or emotional harm, and it is against the law in Texas. The first step in stopping domestic violence
is to recognize it when it happens. It’s hard to accept that you may be battered by someone you love. Still, you may
be a victim of family violence if:
you are being pushed, shoved, slapped, bruised, kicked, strangled, or threatened with a weapon;
you are verbally attacked
or accused ;
your possessions are intentionally damaged;
you are not allowed to come and go as you wish;
you are
being followed, harassed, or spied upon;
you are forced to have sex or perform a degrading sexual act;
you are kept
in isolation.
In families where battering occurs, the rate of child abuse or neglect is 15 times higher than the national
average. Children may be hurt indirectly when their parent is abused or may be injured trying to protect their parent.
Domestic violence victims are men, women, and children. Nationally, reports of domestic disturbances involve almost equal
numbers of female and male perpetrators. However, women are 5 to 8 times more likely to be killed by an intimate partner then
men. In the year 2000, law enforcement reported more than 175,282 incidents of family violence in Texas, with 104 women killed
by their intimate male partners. No one deserves to be abused. If something about your relationship frightens you, or if you
or someone you know is suffering abuse in a relationship, please call the National Domestic Violence Hotline. The CPS caseworker
providing you with this brochure may also have information on additional community resources.
TexCare Partnership
Children’s Health Insurance to Fit Your Budget
1-800-647-6558
TexCare Partnership is
a children’s health insurance campaign developed especially for Texas families. Its purpose is to provide health insurance
for children age newborn through 18, at a price that fits the budgets of Texas families. Most families will pay no more than
$18 per month to insure all of their children. Rates are flexible and are based on the number of people in your family and
your family’s income and expenses. Application to TexCare Partnership will not affect your immigration status.
Child Protective Services caseworkers investigate reports of child abuse or neglect in order to determine whether any child
in the referred family has been abused or neglected. In addition, caseworkers assess critical areas of individual and family
functioning to determine whether any child in the referred family is at risk of abuse or neglect; and initiate protective
services for children who need protection.
To determine whether any child in the family has been abused or neglected and is still at risk of abuse or neglect, the
investigative worker may interview family members and appropriate collateral sources. At the end of the investigation, staff
must assign a disposition to each allegation identified for the investigation. Dispositions include the following:
- Reason-to-believe. Based on a preponderance of the evidence, staff conclude that abuse or neglect has occurred.
- Ruled-out. Staff determines, based on available information, that it is reasonable to conclude that the abuse or neglect
has not occurred.
- Unable To Complete. An "unable to complete" investigation is one that cannot be concluded and assigned another disposition
because the family could not be located to begin the investigation, or the family was contacted but subsequently moved and
could not be located to complete the investigation or the family refused to cooperate with the investigation. CPS policy outlines
several required actions the caseworker needs to complete with the "Unable To Complete" disposition.
- Unable-to-determine. Staff concludes that none of the dispositions specified in [1 through 3 above] is appropriate.
- Administrative closure. Information received after a case was assigned for investigation reveals that continued Child
Protective Services intervention is unwarranted.
The worker must also determine whether there is a reasonable likelihood that a child will be abused or neglected in the
foreseeable future. There are two alternatives.
- The worker concludes that the children are not at risk if
(a) no significant risk factors have been identified, and abuse or neglect has not been found to have occurred in the current
investigation; or
(b) the family appears willing and able, through use of family and community resources, to deal with risk factors in their
lives in such a manner as to ensure the safety of the child(ren) for the foreseeable future. If the worker concludes that
the children are not at risk, then the case may be closed.
- The worker concludes that the children are at risk of abuse or neglect if:
(a) the worker has identified significant risk factors, and
(b) the family appears unable or unwilling to utilize family and community resources to deal with the risk factors in a
manner that will ensure the safety of the child(ren) for the foreseeable future.
If the worker concludes that the children are at risk of abuse or neglect, then the worker may recommend:
- services to address the problem,
- open the case for family based safety services or
- file a petition to initiate civil court action to protect the victim.
Actions could include removal of the children from the home and possibly termination of parental rights.
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Time Frames
The worker must complete investigation actions within 30 days from the date the report was received by the agency unless
the supervisor has approved an extension.
Law Enforcement
All reports must be referred to the appropriate law enforcement agency for possible criminal prosecution. During the 78th
Regular Session, the Texas Legislature passed Senate Bill 669, requiring law enforcement to accompany CPS caseworkers when
responding to Priority 1 reports of abuse/neglect that involve children who appear to face immediate risk of harm that could
result in death or serious injury.
On November 4, 2003, the interim House Committee on Human Services was charged with monitoring the implementation of SB
669. The interim committee charge further requires a study that includes, at a minimum, the impact of this legislation on
victims, parent cooperation and local law enforcement availability.
DFPS has identified three sites of the state where additional staff resources are being dedicated to conduct the study
mandated by the interim Human Services Committee. Interim study findings are expected in December 2004.
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Statewide Intake
DFPS operates a toll-free, statewide telephone reporting system or "hotline" as a method of receiving reports of suspected
abuse or neglect. This program is known as Statewide Intake.
The purpose of the abuse hotline is to provide the public with a way to report:
- child abuse and neglect;
- the abuse, neglect, and exploitation of aged and disabled adults; and
- the abuse or neglect of persons in TDMHMR licensed state schools, state hospitals, state centers and community-based centers
when staff in those facilities are alleged perpetrators.
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How to Report
- Texas Abuse Hotline number is (800) 252-5400
- Professionals may also opt to make their report through the Internet.
On the home page of the agency website, a professional has the option to select whether they are making a report of abuse/neglect
of children or abuse/neglect/exploitation of persons 65 years or older and adults with disabilities. Professionals are encouraged
to use this website to report non-emergency situations to DFPS.All reports, which meet the statutory definitions of abuse
and neglect, are assigned a priority based on the level of risk and severity of harm to the child.
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Report Priorities
Reports of child abuse or neglect are classified in one of two priority groups and the priority of the intake determines
time frames for initiating the investigation. Intake staff assign the appropriate priority based upon information available
at the time the report is accepted. The field supervisor may specify a more exact timeframe for initiating the investigation.
Priority I Reports:
Priority I reports include all reports of children who appear to face an immediate risk of abuse or neglect that could
result in death or serious harm. Investigations of these reports must be initiated within 24 hours of receiving the call report.
Priority II Reports:
Priority II reports include all reports of abuse or neglect that are not assigned as Priority I. These investigations must
be initiated within 10 days of receiving the report.
Some reports received do not meet the statutory definition of abuse or neglect, as defined in the Texas Family Code, and
thus are not assigned.
Reasons for not assigning include:
- the situation does not appear to involve a reasonable likelihood that a child will be abused or neglected in the foreseeable
future;
- the allegations are too vague or general to determine whether a child has been abused or neglected or is likely to be;
- the report does not give enough information to locate the child or the child's family or household; or
- the situation is already under investigation, in which case, staff are to merge the intake into the open investigation.
Any error in trial court admitting substance abuse counselor's testimony in parental
rights termination case was harmless; counselor testified as to general procedures that facility used to treat patients, objective
factual information such as this did not fall under protections of federal confidentiality regulation, only information given
by mother to facility that might be protected communication was mother's report of her history of drug and alcohol use, and
since this information was already before court, counselor's testimony was cumulative. 42 C.F.R. § 2.63(a). People in Interest of R.D.H., 944 P.2d 660 (Colo. Ct. App. 1997), cert. denied, (Oct. 20, 1997).
In proceeding to terminate
parental rights of mother who was convicted of drug offenses, court erred in terminating mother's rights in child who was
about 2 years old, where at time of mother's arrest, child was perfectly normal in medical, physical, and developmental condition,
and there was no evidence of abuse, where 2 months before termination petition was filed, mother had voluntarily entered correctional
institution program that was 6-month "boot camp" in which inmates participated in daily work assignments or educational classes
and received drug and alcohol education, where at time of termination hearing, mother was receiving above-average grades in
program, where it was undisputed that circumstances that prompted state to seek termination of mother's rights stemmed from
her abuse of and dependency on controlled substances, where at time of hearing, however, mother had been drug free for more
than 1 year, where mother was scheduled to be released from custody 4 months from time of hearing, and she was not facing
prolonged period of incarceration, where mother's interaction with social agencies had not been of such extended duration
that it would reasonably appear that no lasting adjustment could be affected, and where state failed to demonstrate by clear
and convincing evidence that integration of child into mother's home was improbable in foreseeable future due to conduct or
conditions unlikely to change. State ex rel. Children's Servs. Div. v Rollins (In re Rollins) (1995) 136 Or App 7, 900 P2d 1072.
Mother could not assert psychologist-patient privilege to preclude
testimony of psychologist in proceedings for termination of parental rights, where mother saw psychologist only at instigation
of Department of Family and Children Services (DFACS) and received no treatment. Georgia Code § 43-39-16. In re M.N.H., 237 Ga. App. 471, 517 S.E.2d 344 (1999); West's Key Number Digest, Witnesses 214.5.
Testimony by experts, that mother had a borderline personality disorder, which was exhibited by
anger that affected daily functioning, that doctor saw a decrease in mother's parenting skills, and that the children would
be at risk in her care, that mother's mental condition, i.e., instability, and lack of self control in communicating and punishing
the children, would keep her from being able to knowingly provide the children with the necessary care, custody and control,
and evidence of mother's verbal abuse of the daughter, and the son's detrimental physical reaction to visits with his mother,
was sufficient to support finding of abuse or neglect warranting termination of parental rights. V.A.M.S. § 211.447, subd. 2(2). In re V.M.O., 987 S.W.2d 388 (Mo. Ct. App. W.D. 1999); West's Key Number Digest, Infants 181.
In proceeding on petition
of maternal grandparents to adopt child over objection of father, court did not err in granting petition under statute providing
for adoption over objection of incarcerated parent, where father was serving 25-year prison term for forcible rape, where
mother had consented to adoption, where, under statute providing for adoption over objection of incarcerated parent, applicable
standard was best interest of child, where child had lived with grandparents since he was 1 year old, where child had muscular
dystrophy, was on life support systems, and required constant attention and assistance, and where, because of child's special
medical needs, his home environment had to be not just stable and permanent but specially outfitted, and his caregivers had
to be specially trained. In re Rodrigue (1995, La App 1st Cir) 657 So 2d 648.
Factors to be considered in determining whether grounds exist for termination of parental
rights included mother's leaving child with former foster parents, her lack of permanent residence, failure to find employment
or seek treatment for her depression, all of which might indicate that child was dependent child. W.W. v. Clay County Dep't of Human Resources (In re K.R.W.), 656 So2d 870 (Ala Civ App 1995).
While rights of natural parents are not to be passed over lightly, such rights must
give way to the best interest of the child when the natural parents seriously fail to provide reasonable care for their minor
children; parental rights will not be enforced to the detriment or destruction of the health and well-being of the child.
J.T. v. Arkansas Dept. of Human Services, 329 Ark. 243, 947 S.W.2d 761 (1997).
Likelihood of adoption: Substantial evidence supported that five-year-old child was likely to be adopted, for
purposes of termination of parental rights proceedings; child was an attractive, healthy girl with a great sense of humor
and a quick wit, child was bright and excited about school, having just started kindergarten that year, although child was
having nightmares and looked terrified when told "no," both child and her prospective adoptive parents were working with a
new therapist on these and other issues, and child was living with a family that wanted to adopt her. West's Ann.Cal.Welf. & Inst.Code § 366.26. In re J.I., 108 Cal. App. 4th 903, 134 Cal. Rptr. 2d 342 (6th Dist. 2003), review denied, (Aug. 20, 2003); West's Key Number Digest, Infants 155.
Statute requiring court, when determining whether parent is "unfit" for purposes of
proceeding to terminate parent-child legal relationship, to consider that child has been in foster care under the responsibility
of county department for 15 of most recent 22 months, except if child has been in foster care due to circumstances beyond
control of parent such as incarceration, did not prohibit court from considering time an incarcerated mother's child had been
in foster care as a factor bearing on larger issue of whether termination was in best interests of child. West's C.R.S.A. § 19-3-604(2)(k)(IV), (3). People in Interest of M.H., 10 P.3d 713 (Colo. Ct. App. 2000), cert. denied, (Oct. 10, 2000); West's Key Number Digest, Infants 155.
Termination of mother's parental rights was in best interest of child, despite child's
close ties to biological family; mother had serious, long-term history of instability stemming from drug abuse, mental illness,
and criminal conduct which resulted in her incarceration, mother's failed to take steps to stabilize life, mother had been
absent from child's life for extended periods, which resulted in child suffering multiple foster home placements, child had
bonded with current foster family and desired to remain with foster family, and child was in need of permanency and stability.
C.G.S.A. § 17a-112(k). In re Davonta V., 98 Conn. App. 42, 907 A.2d 126 (2006); West's Key Number Digest, Infants 155.
Failure to exercise visitation rights after removal from custody: Clear and convincing evidence established
that termination of mother's parental rights would be in the best interests of the child; mother cancelled visitation with
child when it interfered with visits with friends or parties, visitation was always initiated by the Division of Family Services
and never by mother, mother's interaction with child during visitation was minimal, mother had a history of depression and
had been hospitalized for suicidal thoughts, mother failed to attend counseling, and mother failed to exercise any responsibility
for support, care or education of child and allowed her responsibilities to be exercised by others. 13 Del.C. §§ 722, 1103(a)(5). Division of Family Services, (DFS) v. L.X., 801 A.2d 12 (Del. Fam. Ct. 2002); West's Key Number Digest, Infants 155.
Substance abuse: Even if records of mother's drug treatment were covered by statutory confidentiality
requirements, such records were properly admitted into evidence in proceedings to terminate mother's parental rights; Juvenile
Court held full and fair show-cause hearing prior to admitting records into evidence, and after weighing public interest and
need for disclosure against injury to patient, to physician-patient relationship, and to treatment services, Juvenile Court
found good cause to order disclosure. Public Health Service Act, § 543, as amended, 42 U.S.C.A. § 290dd2; Georgia Code §§ 15-11-81, 26-5-17(a). In re L.H., 236 Ga. App. 132, 511 S.E.2d 253 (1999); West's Key Number Digest, Mental Health 21.
State failed to prove by clear and convincing evidence that mother was a habitual drunkard
for at least one year immediately prior to the commencement of parental unfitness proceeding; at most, evidence indicated
that mother drank alcohol and failed to attend her treatment sessions during relevant period, and although evidence that mother
drank alcohol during relevant period raised suspicion that she was an habitual drunkard at that time, this did not rise to
level of clear and convincing evidence necessary to show that mother was an habitual drunkard. 750 Illinois Compiled Statutes Annotated 50/1, subd. D(k). In re J.J., 316 Ill. App. 3d 817, 250 Ill. Dec. 103, 737 N.E.2d 1080 (3d Dist. 2000); West's Key Number Digest, Infants 181.
While Fourteenth Amendment provides parents with a due process right to establish a
home and raise their children, the law allows for the termination of those rights when the parties are unable or unwilling
to meet their responsibility as parents; this policy balances the constitutional right of parents to the custody of their
children with the State's limited authority to interfere with this right. U.S.C.A. Const.Amend. 14. In re B.D.J., 728 N.E.2d 195 (Ind. Ct. App. 2000); West's Key Number Digest, Constitutional Law 274(5).
Statute which allows adoption to proceed without parental consent when there has been
failure to provide court-ordered support does not violate parent's procedural or substantive due-process rights; fact that
there may be less-restrictive measures to force parent to meet support obligation, such as income assignment, tax-refund intercept,
garnishment, and contempt of court, does not make consentless adoptions based on nonsupport unconstitutional. Hergenreder v Madden (In re J.R.M.) (1995, Okla) 899 P2d 1155.
Evidence of mother's untreated personality disorder, her pathological inability to stay
out of abusive relationships, her failure to provide for children and her failure to correct her unstable lifestyle was sufficient
to establish State Office for Services to Children and Families' prima facie case for termination of parental rights, and
that termination was in children's best interests; caseworkers met with mother regularly, and wrote her numerous letters,
stressing importance of finding stable employment and housing, receiving counseling, and ending her abusive relationship,
and gave mother explicit instructions about how to meet these goals. ORS 419B.504, 419B.506. State ex rel. State Office for Services to Children and Families v. Cox, 152 Or. App. 756, 954 P.2d
1277 (1998).
Sufficient evidence supported finding that termination of father's parental rights was
in children's best interest, where mother voluntarily terminated parental rights, children had been living in squalor in trailer
with parents, trailer was virtually uninhabitable and dangerous, had no working toilet or bathtub, had only one bed for five
people, had trash and garbage strewn about, had exposed electrical wires, had holes in ceiling and floor, and had heat from
only small heater, children had not eaten or bathed for considerable time and had lice, one child reported smoking marijuana
that father gave him, father may have sexually abused other child, and parents had been subject of previous child protective
and criminal investigations. V.T.C.A., Family Code § 161.001. In re A.P., 42 S.W.3d 248 (Tex. App. Waco 2001), Rule 53.7(f) motion filed, (Oct. 25, 2001); West's Key Number Digest, Infants 178.
"Stagnation," such as will support finding that substantial change in material circumstances has
occurred and warrant termination of parental rights, may be shown by passage of time with no improvement in parent's capacity
to care properly for the child, but mere fact that parent has shown some progress in some aspects of his or her life does
not preclude finding of changed circumstances warranting modification of a previous disposition order. 33 V.S.A. § 5532(a). In re S.W., 833 A.2d 879 (Vt. 2003); West's Key Number Digest, Infants 155.
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In making a determination of whether the father has abandoned a child such that his
consent is not required for the child's adoption, the court may consider lack of emotional support and/or emotional abuse
by the father toward the mother during her pregnancy, because the language of FS § 63.032(14), which allows the court to consider the conduct of the father toward the mother during pregnancy, indicates that the legislature
did not intend to limit "conduct" to financial support. Substantial competent evidence supported the finding that the natural
father had abandoned his child and, therefore, that his consent was not required for the child's adoption, where the father
showed little to no interest in the natural mother or the unborn child, provided no financial or emotional support after the
mother moved out of his home, and took no steps regarding the child until he was notified that the child had been placed for
adoption, and even after he was notified he provided no support for the mother or child. G.W.B. v J.S.W. (In re Baby E.A.W.) (1995, Fla) 658 So 2d 961, 20 FLW S 376.
Term "willfulness," as applied to a determination of abandonment under the adoption
statute, is not necessarily the equivalent of the element of willfulness essential to a finding of criminal culpability under
a penal code. Florida Statutes § 63.032(14). G.T. v. Adoption of A.E.T., 725 So. 2d 404 (Fla. Dist. Ct. App. 4th Dist. 1999); West's Key Number Digest, Adoption 7.4(3).
Putative father, who failed to register with Putative Father Registry and, therefore,
waived his right to notice of adoption proceeding under Adoption Act, was not subjected to disparate treatment from other
similarly situated putative fathers whose parental rights were regulated by adoption provisions of Juvenile Court Act, as
required for equal protection claim; Juvenile Court Act incorporated by reference many provisions of Adoption Act, including
those with respect to requirements for notice and consent, and neither Act required notice of adoption to unregistered putative
fathers, whose consent would not be required for adoption. U.S.C.A. Const.Amend. 14; S.H.A. 705 ILCS 405/229(1), 2-30; 750 ILCS 50/8(b, c), 12.1(g, h), 12a. Petition of K.J.R., 227 Ill. Dec. 190, 687 N.E.2d 113 (App. Ct. 1st Dist. 1997).
Determination of abandonment based upon lack of parental communication with child, justifying
obviation of requirement of consent to adoption, should receive liberal construction so that children who have been denied
benefits of home and parental care may receive those benefits, but not such interpretation as would destroy safeguards for
preservation of family relationships. West's A.I.C. 31-19-9-8(b). In re Adoption of J.P., 713 N.E.2d 873 (Ind. Ct. App. 1999); West's Key Number Digest, Adoption 7.4(2.1).
Statute providing for termination of natural father's parental rights, in connection
with child's adoption, if father failed to support mother in the six months prior to child's birth, does not violate principles
of due process; statute provides father with notice and opportunity to be heard and appointed counsel to represent him if
necessary, and statute requires safeguard of clear and convincing burden of proof before terminating father's parental rights.
U.S.C.A. Const.Amend. 14; K.S.A. 59-2136(h)(4). In re Adoption of D.M.M., 24 Kan. App. 2d 783, 955 P.2d 618 (1997).
Reasonable efforts by the county to facilitate contact between the parent and the child
are not required if the county is not seeking to use the presumption of abandonment as basis for terminating parental rights.
M.S.A. § 260C.301, subds. 1(b)(1), 2(a)(1). In re Welfare of Children of R.W., 678 N.W.2d 49 (Minn. 2004); West's Key Number Digest, Bankruptcy 155.
Standard of proof: For adoption of a child without the consent of the child's natural parents, proof of
intent to abandon must be shown by clear, cogent and convincing evidence, and this standard of proof is met when the evidence
instantly tilts the scales in favor of termination when weighed against the evidence in opposition and the finder of fact
is left with the abiding conviction that the evidence is true. V.A.M.S. § 453.040(5). In re Adoption of H.M.C., 11 S.W.3d 81 (Mo. Ct. App. W.D. 2000); West's Key Number Digest, Adoption 7.8(5).
Evidence of absence of mother-child contact for four years was sufficient to prove abandonment,
which justified termination of mother's parental rights and adoption of child without mother's consent, despite mother's contentions
that two returned letters constituted repentance of willful abandonment and that her lack of vehicle to travel negated intent
to abandon child, where mother voluntarily relinquished child to adoptive parents, made minimal efforts to contact child for
year when they lived in same town, moved to two separate states, made only a few phone calls to child, did not sent any financial
support, gifts, or cards to child, and when mother did not know where child was, she made only de minimus effort to locate
child, and did not contact attorney, court, police, or any other child service organization. V.A.M.S. § 453.040(5). In re Adoption of H.M.C., 11 S.W.3d 81 (Mo. Ct. App. W.D. 2000); West's Key Number Digest, Adoption 7.8(5).
"Abandonment" of child by natural parent, which will terminate parental rights and allow
adoption of child without consent of natural parent, is the voluntary and intentional relinquishment of the custody of a child
with the intent to never again claim the rights or duties of a parent, or the intentional withholding by the parent of his
or her care, love, protection and presence, without just cause or excuse. V.A.M.S. § 453.040(5). In re K.L.C., 9 S.W.3d 768 (Mo. Ct. App. S.D. 2000); West's Key Number Digest, Adoption 7.4(2.1).
Sufficient evidence existed to support trial court's determination that children had
been neglected by mother so as to warrant termination of mother's parental rights, where mother repeatedly missed visits,
failed to write children, did not consistently give children gifts for Christmas and birthdays, failed to pay child support,
moved ten times, had substance abuse problems and thoughts of suicide, and had failed to make support payments, and where
children reported mice and roaches in mother's home, slept on floor at mother's home, and would return from their visits with
mother dirty and hungry. V.A.M.S. § 211.447, subd. 2(2)(d). In re S.L.N., 8 S.W.3d 916 (Mo. Ct. App. S.D. 2000); West's Key Number Digest, Infants 179.
Mother's voluntary absence from state after the children were removed from her home,
her extensive travel throughout the country, and failure to return to state where her children reside for more than six months
supported finding that mother had abandoned children, for purposes of terminating her parental rights, even though mother
inquired about children's health during her regular telephone calls to grandmother, has sent them small gifts, and has stated
that "she wanted to continue to be a mother to her children." Neb.Rev.St. § 43-292(1). In re Interest of Sunshine A., 258 Neb. 148, 602 N.W.2d 452 (1999); West's Key Number Digest, Infants 180.
Children's biological mother failed to provide a satisfactory explanation for her failure
to contact her children for over two years, making her consent to their adoption unnecessary; mother never wrote children
cards or letters despite knowing their address, never sent gifts she bought them, made a few calls but never followed up,
did not attempt to obtain their phone number when it changed, never paid child support, did not follow up with their counselor
who agreed to arrange for phone contact, and never filed a petition with Family Court for a violation or modification of visitation.
McKinney's DRL § 111, subd. 2(a). In re Shauna B., 305 A.D.2d 737, 759 N.Y.S.2d 563 (3d Dep't 2003); West's Key Number Digest, Adoption 7.4(2.1).
Finding that mother had failed to maintain frequent and substantial contacts with child
for period of more than one year subsequent to placement of child in foster care was supported by clear and convincing evidence
presented in proceeding to terminate mother's parental rights, and supported order terminating mother's rights and committing
child to custody of the Commissioner of Social Services for purpose of adoption; adoption was clearly in child's best interest,
given mother's admitted history of multiple substance abuse and the substantial length of time that child and her brother
had been in preadoptive home. McKinney's Social Services Law § 384-b, subd. 7. In re Sylvia Maria P., 663 N.Y.S.2d 580 (App. Div. 1st Dep't 1997).
Munchausen's syndrome: Evidence that mother had perpetrated Munchausen's syndrome by proxy (MBP) abuse on
her oldest child supported termination of mother's parental rights; several doctors and two experts on MBP abuse indicated
without reservation that oldest child's medical problems of recurrent symptoms in her thigh, anemia, and respiratory arrest,
were not traceable to medical cause or condition, several medical professionals began their investigation with intent of determining
medical cause for child's medical problems but could find none, and mother's refusal to admit abuse and nature of MBP abuse
made reunification risky proposition for both oldest child and her younger siblings. B.M. v. State, 895 So. 2d 319 (Ala. Civ. App. 2004); West's Key Number Digest, Infants 156.
Termination of parental rights was in best interests of dependent children, where reports
and testimony of caseworkers and children's parents indicated that youngest child had been hospitalized three times for failure
to thrive syndrome, mother was mildly mentally retarded, had mixed personality disorder, had inability to care for children,
took her frustration out on children, and failed to respond appropriately to children's needs, and father had problem with
alcohol, provided care for children while intoxicated, and refused to complete parenting classes or alcohol treatment of any
kind. Code 1975, § 26-18-7(a)(1, 2, 4, 6), (b)(4). W.F. v. State Dept. of Human Resources, 704 So. 2d 483 (Ala. Civ. App. 1997).
Munchausen's syndrome diagnosis: Clear and convincing evidence supported determination that there
was reasonable probability that conditions that resulted in child's removal from mother's care would not be remedied, as statutory
element for termination of her parental rights; mother was diagnosed with probable Munchausen's syndrome by proxy and other
mental health problems, she believed that she had no problems which needed to be addressed, she left state abruptly and did
not return to request visit with child for several months, and she had criminal history, including conviction for neglect
of dependent. West's A.I.C. 31-35-2-4. In re J.W., 779 N.E.2d 954 (Ind. Ct. App. 2002); West's Key Number Digest, Infants 178.
Evidence supported the determination that the mother was unfit to care for her child
and a judgment dispensing with the need for her consent to any petition for adoption where (1) the mother, who was 17 at the
time of her child's birth, was committed for a 10 day evaluation while pregnant because of her refusal to eat, based on medical
testimony that she was a danger to those around her, including the fetus, and was diagnosed as having psychotic depression,
(2) after the child was born, the mother was transferred to a state hospital, (3) the mother was subsequently admitted to
a day treatment program, but was later discharged for nonattendance, and (4) medical records revealed repeated assaultive
or oppositional behavior by the mother, a refusal to understand unpleasant or disappointing communications, an unwillingness
to take responsibility for her actions and an insistence on blaming others for negative events that befell her. Adoption of Gabrielle (1995) 39 Mass App 484, 657 NE2d 1281.
Munchausen's syndrome: Suspected behaviors of mother did not fit Munchausen's syndrome by proxy profile; mother
was farm worker with ninth grade education, lacked any medical training or knowledge, record failed to establish that she
developed any particular rapport or relationship of trust with either attending physicians, nurses or other hospital staff
and, in fact, testified to confrontational relationship with physician from its inception, neither was it established that
she had especially close or symbiotic relationship with child nor had sought out unreasonable number of medical providers.
In re Patrick GG, 286 A.D.2d 540, 729 N.Y.S.2d 215 (3d Dep't 2001); West's Key Number Digest, Infants 156.
County department of social services met its burden of proving by clear and convincing
evidence that mother, by reason of mental illness, was presently and for foreseeable future unable to provide proper and adequate
care for her child, and that it was likely that child would be in danger of becoming neglected child if placed in her care
and custody, where examining psychiatrist gave uncontradicted testimony that mother had suffered from paranoid schizophrenia
for at least 20 years, that she failed to understand her mental illness or need for medication, and that her prognosis for
long-term stable level of rational performance was poor. In re James J. (1994, 4th Dept) 207 AD2d 960, 616 NYS2d 827.
Parent who is incapable of performing parental duties is just as parentally unfit as
one who refuses to perform such duties. In re Adoption of C.A.W. (1996, Pa Super) 683 A2d 911.
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Organization News
Our organization welcomes Palmer Berry to the staff.
A new session of the animal awareness training class begins April
22nd.
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