Perspectives on Youth - "Expediting the Adoption Process at the Appellate Level"
By Justice Evelyn Lundberg Stratton
A supplier sues a contractor for breach of contract. Following a period of discovery and several continuances and three years after the complaint was filed, a two-week trial is held. There is a jury verdict for the supplier and the contractor appeals. The appellate process takes eighteen months before the court issues its decision. Another six months passes before the Supreme Court declines jurisdiction. After five years, the supplier eventually is paid for the goods delivered, plus interest on the judgment.
An abused and neglected two-year-old child is removed from her home and placed into foster care. A social services agency files a dependency action in juvenile court. The child is shifted to a second foster home when her foster parents decide to move. Meanwhile, three attempts at family reunification fail. The court eventually conducts a final hearing three years after the child was removed from her family. Although an adoptive family has been located, the child must remain in foster care, because an appeal is pending. The appellate process takes eighteen months before the court issues its decision. Six months later, the Supreme Court accepts jurisdiction. Another year passes before the Court conducts oral arguments and issues its opinion.
That two-year-old girl is now age eight and permanently scarred from six years of frequent moves among foster homes and sporadic visits with drug-abusing parents. She has watched six summers and holiday seasons pass as she waits to become part of a real family. The family who sought to adopt her as a toddler has reconsidered and now declines to adopt an emotionally troubled eight-year-old. The little girl, now available for adoption, remains in foster care, yearning for new parents. There is no award of interest on a judgment that will make her whole.
Cases involving termination of parental rights and adoption issues are about the lives of children, rather than contracts, insurance, business disputes, or water rights. The legal system views these cases as numbers on a docket. However, to a child, waiting for a resolution seems like forever-an eternity with no real family and no sense of belonging.
There is a movement stirring to change the adoption process. This movement considers what is in the best interests of the child and sees the world through the eyes of a child. There is a nationwide initiative to train judges, child welfare personnel, attorneys and even volunteers to move courts and agencies toward meaningful change in this direction. For example, the National Council of Juvenile and Family Court Judges has written a guidebook to address and teach the best courtroom practices for cases involving children. [FN1] The Council has also established model courts throughout the country as training sites where judges and court personnel can learn ways of expediting justice for children and families. [FN2]
This movement began with the enactment of the Adoption and Safe Families Act of 1997 (ASFA). [FN3] The Act shortened the time frames for court hearings and permanent placement in order to minimize the amount of time that children spend in foster care. [FN4] The Act clarifies that the health and safety of a child are paramount in decisions regarding family reunification. [FN5] The focus must be on the health, safety, and permanency of children from the beginning of a child protection case. State agencies are required to document their activities and services in furtherance of these goals. [FN6] The Act's purpose is to free more children for adoption while simultaneously requiring that the process move quickly, so as to move toward permanency for these children. [FN7]
The Act requires that a court conduct a permanency hearing within twelve months after a child enters foster care. [FN8] It encourages concurrent planning, i.e., planning for reunification while concurrently making an alternative plan for permanency or adoption. [FN9] If the reunification fails, a second plan is ready and in place. [FN10] In certain circumstances, reasonable efforts to unify a family need not be attempted if a court finds that the parent from whom the child was removed subjected that child to aggravated circumstances such as abandonment, torture, chronic abuse, [FN11] or if the parent committed murder [FN12] or voluntary manslaughter of the child's sibling [FN13] or committed a felonious assault that resulted in serious bodily injury to the child or a sibling. [FN14]
In 1999, Ohio enacted its own version of the Adoption and Safe Families Act. [FN15] Ohio's Act, like the federal one, mandates that courts consider what is in the best interests of the child when making dispositional orders in dependency and neglect cases or when a child is in the temporary custody of a public children's services agency or a private child placement agency. [FN16] Ohio also requires that the child's health and safety be considered paramount when determining whether an agency has made reasonable efforts to reunify a family. [FN17] Like its federal counterpart, Ohio also does not require reasonable efforts at reunification under certain circumstances.[FN18] These circumstances include when the parent of the child has been convicted of or pled guilty to certain specified offenses, such as murder, assault, rape, various sexual crimes, or child endangering. [FN19] These circumstances also include when the parent has repeatedly withheld food or medical treatment from the child, except in certain instances involving recognized religions. [FN20]
Delays in the judicial process contribute to the concerns addressed by ASFA. These delays may be affected by local court rules, individual caseloads, priorities of a particular court, or even the work ethic of individual judges. Termination of parental rights and adoption cases may be given priority or may only be treated as any other case.
There is inconsistent treatment among courts on a nationwide basis with respect to cases involving termination of parental rights and adoption, particularly at the appellate level. Currently, approximately half of the states have statutes or court rules that address expedited appeals on a statewide basis. Some states merely give vague and non-specific instructionsi.e., "at the earliest practicable time"while other states specify strict guidelines. Appendix A provides a summary of various state requirements that address expediting cases involving children.
Currently in Ohio, three appellate judicial districts have local rules that provide an expedited review and determination of matters involving children. The Second, [FN21] Fourth, [FN22] and Fifth [FN23] Appellate Districts give priority to appeals involving custody and parental rights; however, these local rules are not uniformly enforced. The Rules of Practice of the Ohio Supreme Court provide an expedited process only for election matters that require prompt disposition relating to a pending election. [FN24]
It is vital that appellate courts take whatever steps necessary to become part of the solution by creating and following an expedited process for appeals involving termination of parental rights and adoption issues. An expedited appeals process should strive to achieve the following goals:
1. Expedite the appeals time
Although expediency is significant at the trial court level, appellate courts must prioritize these cases and set the pace for expediency throughout the entire legal system. If no statewide statute or court rule exists, an appellate court has the authority to adopt a local rule to place these cases on expedited status. [FN25] This may be accomplished by establishing an accelerated calendar, reducing the briefing schedule, and conducting oral argument, if requested, as soon as the case is briefed. In addition, it is important that the court establish internal requirements that give priority to writing opinions in these cases over other matters.
2. Improve case management
Courts with rules in place must enforce them. Judges and judicial staff must identify and prioritize these cases. This may be accomplished by having counsel identify the type of appeal on a docketing statement at the time the notice of appeal is filed, and whether it involves termination of parental rights or adoption issues. The judicial system should be aware of the ultimate goal to place the child in a permanent and stable home as soon as possible.
3. Prioritize transmission of the record
Delays in the appeals process are often due to the length of time taken to transcribe the record in the case below. A statute or rule that expedites the appeals process should mandate that the preparation of the record in cases involving termination of parental rights and adoption be given priority over all the other civil and criminal matters.
4. Reduce delay by parties
A statute or rule that expedites the appeals process should discourage delays by parties by enforcing a shorter briefing scheduling and a strict policy of denying continuances.
After reviewing statutes and court rules from other states and from Ohio appellate districts, I have drafted a proposed rule for the Ohio Rules of Appellate Procedure and proposed amendments to the Rules of Practice for the Supreme Court of Ohio for expediting cases involving termination of parental rights or adoption of a minor child. This project was funded through a generous grant by the Dave Thomas Adoption Foundation to the Dave Thomas Center For Adoption Law at Capital University Law School.
The proposed rule and amendments have been informally circulated to interested parties for comment and discussion, including the Ohio Association of Probate Court Judges, the Ohio Association of Juvenile and Family Court Judges, the Columbus Bar Association Family Law Committee and Juvenile Law Committee, the Ohio State Bar Association Family Law Committee, the Public Children Services Association of Ohio, and the Expedited Adoption Advisory Committee of the National Council of Juvenile and Family Court Judges. There was concern expressed on behalf of public defenders and court-appointed attorneys who represent parents and children as to the abbreviated time frames in the proposed changes. All remaining comments favored the proposed rules. The Supreme Court of Ohio has approved the proposed appellate rule and it will go to the General Assembly in January of 2000 for final approval. The Court has considered the amendments to the Rules of Practice of the Supreme Court of Ohio and they are being published for public comment. Appendix B, to this article, contains the text of the proposed appellate rule and the proposed amendments to the Rules of Practice of the Supreme Court of Ohio. Hopefully, Ohio will soon join the other states that have recognized this challenge.
The life of a child is precious. Thousands of children are adrift in the foster care system. They go to sleep at night dreaming that someday they will belong to a real family. Meanwhile, the years pass as numbers on our docket. We must, even in the sterile, paper-laden world of the appellate court, remember to look through the eyes of a child and do our part to find that child a permanent home.
Alabama expedites adoption cases by a statute that became effective in 1990. [FN26] The statute states that appeals involving adoption "shall have priority in all courts and shall have precedence over all other matters." [FN27]
Alaska expedites appeals by court rule in cases involving adoption, custody, domestic violence injunctions, child-in-need-of-aid proceedings, and guardianship of minors. [FN28] The rule requires that notice of appeal be filed within fifteen days after the date of judgment, and reduces the time for filing briefs and for completion of the record. [FN29] In addition, the appellate court must hear oral argument at the earliest date convenient to the court, but no later than thirty days after the due date of the reply brief. [FN30] The case must "be decided expeditiously by the court." [FN31]
Arizona expedites all juvenile court proceedings by statute and by court rule. [FN32] Both provide that appeals from any juvenile court proceedings shall have "precedence over all other actions except extraordinary writs and special actions." [FN33]
California expedites appeals from orders and judgments involving termination of parental rights or freeing children from parental custody and control. [FN34] Appeals "shall have precedence over all cases in the court to which an appeal in the matter is taken." [FN35] The statute expressly states that to further the goal of enabling the child to be available for adoption as soon as possible, a court may grant extensions of time to a court reporter or to counsel only upon an "exceptional showing of good cause." [FN36]
Colorado law provides that appeals in cases involving adoption and termination of parental rights "shall be advanced on the calendar of the appellate court and shall be decided at the earliest practical time." [FN37]
Florida expedites by statute appeals in cases involving adoption and termination of parental rights. The statute mandates appellate courts to give these appeals priority in docketing and to render a decision as expeditiously as possible. [FN38]
Illinois' Adoption Act provides that an appeal in adoption cases "shall be prosecuted and heard on an expedited basis, unless good cause for doing otherwise is shown." [FN39]
Indiana's statute requires that "an appeal of an adoption decree shall be decided on an expedited basis." [FN40]
By a court rule, Iowa reduces the time for filing an agreed statement of the case in appeals involving custody, adoption, termination of parental rights, and any juvenile proceedings affecting child placement. [FN41] This court rule also instructs court reporters to give priority to transcription of proceedings in these cases over other civil transcripts. [FN42]
Kentucky expedites cases involving the involuntary termination of parental rights only at the trial court level. [FN43]
An appeal from any adoption order "must be expedited." [FN44]
A court rule establishes strict requirements on the processing of appeals involving adoption and termination of parental rights, including briefing schedule, transcription of the record, and scheduling of oral argument.[FN45]
Montana courts must examine the issues and render a decision as soon as possible in matters contesting the termination of parental rights and challenging any adoption decree. [FN46]
N. New Mexico
An appeal from any order that grants or withholds custody of children shall be heard at the earliest practicable time. [FN47]
O. New York
New York requires court administrators at the trial court level to establish rules to expedite adoption proceedings. [FN48]
Oklahoma gives priority to appeals involving adoption and termination of parental rights for adoption purposes by reducing the time for filing the appeal and by establishing a briefing schedule. [FN49]
Q. South Dakota
South Dakota's Supreme Court shall give "first preference" to appeals involving adoption, abuse or neglect judgments, and orders terminating parental rights. [FN50]
Appeals in cases involving adoption and termination of parental rights are to be given priority over all other civil litigation in reaching a determination on the status of the adoption. [FN51] Tennessee's General Assembly specifically intended that the permanent placement of a child not be delayed any longer than is absolutely necessary and that the rights of the child to permanency at the earliest possible date be given priority over all other civil litigation. [FN52]
Appeals involving the termination of parental rights are to be "given preference over other civil cases by the appellate courts." [FN53]
An appeal from an adoption decree "shall be heard expeditiously." [FN54]
"Any appeal of any adoption decree shall be decided on an accelerated review basis." [FN55]
V. West Virginia
Cases involving adoption should be heard "as expeditiously as possible" at both the appellate and trial court levels. [FN56]
"An appeal from a judgment granting or denying an adoption shall be given preference." [FN57]