Justia Family Law Opinion Summaries

In consolidated appeals, a mother challenged decisions by the family division of the superior court denying her motions for an extension of time to file a notice of appeal and to vacate the order terminating her parental rights to K.S., and concluding that K.S. was not an Indian child for purposes of the Indian Child Welfare Act. In March 2018, a relative reported that mother had “tossed” K.S. onto a bed during a family argument and that father had used excessive physical discipline on K.S.’s older brother. K.S. was later found to have a buckle fracture on her wrist, which her parents were unable to explain. The Department for Children and Families (DCF) sought and obtained emergency custody of K.S. and her brother, and filed petitions alleging that they were children in need of care or supervision (CHINS). Mother and father later stipulated to the merits of the CHINS petitions. At the October hearing, mother testified that she understood that she was permanently giving up her parental rights, that her decision was voluntary, and that she believed the decision was in K.S.’s best interests. The court accepted the parties’ stipulations and granted the termination petitions. In December 2019, mother hired a new attorney, who filed a motion for relief from the termination order pursuant to Vermont Rule of Civil Procedure 60(b). Mother alleged that the attorney who represented her at the relinquishment hearing had rendered ineffective assistance, that the underlying facts did not support termination of mother’s parental rights, and that her relinquishment was involuntary because she did not understand the proceedings. The family division denied the motion, finding that mother’s relinquishment was knowing and voluntary and not the result of coercion by DCF or the foster parents. The court further concluded that it was not required to conduct a separate "best interests" analysis when mother voluntarily relinquished her rights, and she failed to establish that her counsel’s performance was ineffective. Mother untimely filed her notice of appeal, and while a decision on the untimely notice was pending, she filed a second motion to vacate the termination order, adding the argument that the court failed to give notice to the Cherokee tribes or to apply the substantive provisions of the Indian Child Welfare Act. The Vermont Supreme Court found no reversible error and affirmed the termination orders. View "In re K.S." on Justia Law

Father appealed a circuit court order terminating his parental rights over his minor child, R.H., on the ground that he failed to correct, within 12 months, the conditions that led to the circuit court’s finding under RSA chapter 169-C that R.H. was neglected by R.H.’s mother (Mother), who had sole physical custody of the child. This appeal presented a narrow question for the New Hampshire Supreme Court's review: when does the 12-month period to correct the conditions of neglect or abuse under RSA 170-C:5, III begin to run against a non-accused, non-custodial parent? On appeal, Father argued the 12-month period did not begin until a non-accused, non-custodial parent was provided actual notice of the neglect or abuse finding. The New Hampshire Division for Children, Youth and Families (DCYF) countered that the 12-month statutory period begins to run from the date of that finding, regardless of actual notice. Because the Supreme Court agreed with Father that the 12-month period begins when a non-accused, non-custodial parent receives constitutionally-adequate notice of both the abuse or neglect finding and the possible impact on parental rights of a failure to correct the conditions leading to that finding, it vacated and remanded. View "In re R.H." on Justia Law

Because the Louisiana Supreme Court found in its original opinion that plaintiffs had a right of action under La. C.C. arts. 2315.1 and 2315.2, their constitutional challenge was pretermitted and “that part of the district court judgment declaring [these code articles and La. C.C. art. 199 to be] unconstitutional as applied to children given in adoption” was vacated. Having found on rehearing that the codal analysis of La. C.C. arts. 2315.1, 2315.2 and 199 foreclosed a right of action to the plaintiff children, who were given in adoption, for the death of their biological parent and half-siblings, the Supreme Court was called on to address the propriety of the district court’s declaration that La. C.C. arts. 2315.1, 2315.2, and 199 are “unconstitutional as applied to children given in adoption.” The Court found a rational basis existed for limiting the categories of eligible claimants in La. C.C. arts. 2315.1 and 2315.2 to those who “are likely to be most affected by the death of the deceased.” Children given in adoption “have moved into a new parental relationship, becoming children ‘by adoption,’ who are eligible claimants in the unfortunate occurrence of the tortious death of their adoptive parents. Likewise, the transfer of children into a new parental unit as children ‘by adoption’ terminates, for purposes of wrongful death and survival actions, any connection between the ‘children given in adoption’ and any biological siblings who were not ‘given in adoption.’” For these reasons, the district court legally erred in finding that the fact that Daniel Goins and David Watts were adopted did not prevent them from bringing survival and wrongful death claims for the deaths of their biological father and biological half-siblings and in overruling the defendant’s exception raising the objection of no right of action. The Supreme Court's original decree was vacated and the district court's judgment was reversed. Judgment was entered sustaining the defendant insurance company's peremptory exception raising the objection of no right of action, and dismissing the claims that were the subject of this exception. View "Rismiller et al. v. Gemini Ins. Co." on Justia Law

J.B. appealed a juvenile court order terminating her parental rights. On appeal, J.B. argued that the district court erred in terminating her parental rights, because the qualified expert witness’s testimony did not satisfy the Indian Child Welfare Act (ICWA). The North Dakota Supreme Court remanded for additional, specific findings under the ICWA: "A qualified expert witness’s expressed preference to deny termination of parental rights does not preclude the court from making findings sufficient to satisfy ICWA and ordering termination." View "Interest of K.B." on Justia Law

Amanda Johnshoy, now known as Amanda Fry, appealed a district court order denying her motion to modify primary residential responsibility. Fry and Zachary Johnshoy divorced in November 2014, and the court awarded Johnshoy with primary residential responsibility of the parties’ two minor children. Since the divorce, Johnshoy moved to a different city within North Dakota. Fry remarried following the divorce. In June 2020, Fry moved to modify primary residential responsibility and parenting time and requested an evidentiary hearing. Fry included two affidavits with the motion: her own and one from the parties’ elder child. The district court denied the motion to modify primary residential responsibility, concluding that Fry had not established a prima facie case warranting an evidentiary hearing. On appeal, Fry argued the district court erred in concluding that her affidavit and her child’s affidavit had not established a prima facie case warranting an evidentiary hearing. “[T]o establish a prima facie case that modification is necessary to serve the best interests of the children requires more than the improved circumstances of the party moving to modify primary residential responsibility.” The North Dakota Supreme Court found Fry’s affidavit did not provide facts showing how a change in circumstances affected the children. "Fry’s affidavit fails to show how a change in custody is necessary to serve the best interests of the children and thus fails to establish a prima facie case for modification of primary residential responsibility." Accordingly, judgment was affirmed. View "Johnshoy v. Johnshoy" on Justia Law

Petitioners T.O. and L.O. were the grandparents of S.O., a child adjudicated as a child in need of care or supervision (CHINS). Petitioners appealed an order of the Human Services Board concluding that the Board lacked jurisdiction to determine whether DCF failed to comply with certain provisions of state and federal law concerning the care of children by relatives. Finding no reversible error, the Vermont Supreme Court affirmed the Board’s judgment. View "In re Appeal of T.O. & L.O." on Justia Law

Appellants Taylor Hudson (Mother) and Cody Hudson (Father) appealed a trial court's judgments terminating their parental rights to their biological children, K.H., C.H., E.H., and C.H. Both judgments were entered on separate jury verdicts finding that clear and convincing evidence supported each parent's “heinous and shocking physical abuse” on another child of Father. After review on rehearing, the Oklahoma Supreme Court held: (1) admitting evidence of State's pending criminal child abuse charges against Parents; and (2) giving a jury instruction that listed the criminal charges to support State's amended petition for immediate termination of parental rights was “so inherently prejudicial” that it violated Parents' right to a fair trial. The judgments were reversed, and the matter remanded for a new trial. View "In the Matter of K. H." on Justia Law

M.M.’s (juvenile) Father challenged the superior court’s refusal of his appeal of a circuit court decision on a neglect petition brought by the New Hampshire Division for Children, Youth and Families (DCYF). Father argued that the amendment to RSA 169-C:28 (effective July 1, 2020), eliminating the right to appeal final dispositional orders in abuse and neglect proceedings to the superior court for de novo review, did not apply to his case. Father also appealed the circuit court’s final dispositional order directly to the New Hampshire Supreme Court pursuant to that amended statute, arguing that the circuit court should not have considered and issued orders on DCYF’s neglect petition and, alternatively, that there was insufficient evidence to support a finding of neglect. After review, the Supreme Court concluded the July 2020 amendment to RSA 169-C:28 applied to Father’s case, barring his appeal to the superior court for de novo review. In its direct review of Father’s appeal of the circuit court’s final dispositional order, the Court concluded the circuit court did not err in considering and issuing orders on DCYF’s neglect petition. The circuit court’s finding of neglect against Father was also affirmed. View "In re M.M." on Justia Law

When Angela Russ (Spouse) and Jeffery Russ (Veteran) divorced, they agreed to divide Veteran’s military retirement pay as part of the community property. Nonetheless, about eight years after their divorce, Veteran waived his retirement pay in order to receive a disability benefit from the federal government. His waiver occurred after Mansell v. Mansell, 490 U.S. 581 (1989) was issued, but before Howell v. Howell, ___ U.S. ___, 137 S. Ct. 1400 (2017) was issued. The question presented for the New Mexico Supreme Court’s review was whether the Court of Appeals correctly determined that Howell did not apply to this case. If the Howell Court’s application of the Mansell rule applied, Veteran could unilaterally change his federal benefit as he did. This change precluded Spouse from receiving any of his retirement benefit from the federal government, regardless of what he agreed to when they divorced. If the Howell Court’s application of the Mansell rule did not apply, then Veteran had to indemnify Spouse for her share of his waived retirement benefit. “Although equitable principles may suggest that we should determine that Howell does not apply in this case, the Supremacy Clause of the federal constitution, U.S. Const. art. VI, cl. 2, precludes that application of equity.” The New Mexico Supreme Court reversed the Court of Appeals’ determination that Howell was not given full retroactive effect in New Mexico, and remanded for further proceedings. View "Russ v. Russ" on Justia Law

The issue this case presented for the Oklahoma Supreme Court’s review was whether the Court of Civil Appeals properly applied the laws on parental rights in a dispute between a married couple regarding custody and visitation with a minor child who was adopted by only one of the parties prior to marriage. The Supreme Court held that it did not: the child was adopted by Respondent-Appellee Adrieanna Guzman (Adrieanna) prior to the marriage. Petitioner-Appellant Carmen Guzman (Carmen) never adopted the child. As a step-parent, Carmen had no standing to petition the court for paternity of the child. Thus, the Court of Civil Appeals' opinion was vacated, and the trial court's order granting Adrieanna's motion to dismiss was affirmed. View "Guzman v. Guzman" on Justia Law