LEGL 311: Final Exam

What is adoption, and how does it differ from custody?

• Adoption permanently terminates the biological parents’ legal rights and creates a new legal parent-child relationship

• Custody determines care and control and can generally be modified

What constitutional right do biological parents have?

A fundamental right to the care and custody of their children (This right is not absolute; the state may intervene to protect the child’s welfare)

What are the two ways parental rights may be terminated?

• Voluntary termination occurs when a parent consents to relinquishing rights

• Involuntary termination occurs through a court order, often because of abuse, neglect, or endangerment

What is the controlling standard in adoption placement decisions?

The best interests of the child.

What law primarily governs adoption?

State statutes, subject to applicable federal statutory and constitutional requirements.

Is biological-parent consent always required for adoption?

Generally, yes, but state statutes provide exceptions under which consent may be unnecessary.

Must a biological parent’s rights generally be terminated before adoption?

Yes: Existing parental rights generally must be terminated before adoption can proceed, subject to statutory exceptions.

Does marrying a child’s biological parent automatically make someone the child’s legal parent?

No: A stepparent generally must complete a legal adoption to establish that parent-child relationship.

What is the difference between private adoption and agency adoption?

• Private adoption is arranged by biological parents through an attorney or intermediary

• Agency adoption is arranged through a licensed adoption agency

What is the legal distinction between reimbursing birth-related medical expenses and buying a child?

• Permitted reimbursement of medical expenses is distinct from payment to purchase a child

• Selling a child is illegal

What factors may courts consider when evaluating prospective adoptive parents?

• The child’s age and needs

• The applicants’ ability to provide stable and appropriate care

• Family relationships

• Other circumstances relevant to the child’s welfare

What is the general legal preference concerning relatives in adoption?

Courts often favor suitable relatives over unrelated applicants when appropriate (subject to the child’s best interests and applicable law)

What was the holding in Drummond v. Fulton County Department of Family and Children’s Services (1977)?

• The Fifth Circuit upheld dismissal of foster parents’ constitutional claims after an agency considered race in placement. Under the circumstances

• Race was treated as a potentially relevant factor rather than an automatic exclusion

What is the significance of the Multiethnic Placement Act (MEPA)?

Enacted in 1994 and amended in 1996, restricts agencies receiving federal assistance from delaying or denying foster or adoptive placements solely because of race, color, or national origin

How should Drummond be distinguished from MEPA?

• Drummond was a historical decision allowing race to be considered under its circumstances

• MEPA subsequently restricted race-based placement decisions and delays in covered placements

What constitutional issue does religious matching in adoption raise?

• The First Amendment’s Establishment Clause, along with religious freedom, nondiscrimination, and the child’s best interests

• Legality depends on the applicable statute and constitutional context

What did Obergefell v. Hodges (2015) establish, and why is it relevant to adoption?

• The Supreme Court recognized the constitutional right of same-sex couples to marry

• This created serious constitutional obstacles to categorical adoption bans targeting married same-sex couples

What was the holding in Fulton v. City of Philadelphia (2021)?

The Supreme Court unanimously ruled for Catholic Social Services (CSS), holding that Philadelphia violated its religious-exercise rights by refusing to contract with it under a policy that allowed discretionary exceptions

Does Fulton establish that every religious adoption agency may refuse LGBTQ+ applicants?

No: It permits certain religious exemptions when legal requirements are met; it does not establish a blanket right to discriminate

What is second-parent or coparent adoption, and why is it important?

It legally establishes a second parent’s relationship to a child, providing recognized parental rights and responsibilities, particularly in same-sex couples’ families and assisted-reproduction situations

What did V.L. v. E.L. (2016) establish?

States must recognize a valid adoption judgment issued by another state under the Full Faith and Credit Clause

What was the holding in Matter of Robert Paul P. (1984)?

• The New York Court of Appeals denied an adult adoption sought by a man who wanted to adopt his longtime male romantic partner

• The majority concluded that adult adoption could not be used solely to formalize a romantic partnership

What was the central disagreement in the dissent in Matter of Robert Paul P.?

The dissent argued that the statute did not require a preexisting parent-child relationship and did not expressly prohibit adoption between consenting adult romantic partners

What legal consequences can adult adoption create?

Legal parent-child status, including inheritance rights and responsibilities

What is the purpose of the Indian Child Welfare Act (ICWA) of 1978?

To protect Native American children, families, and tribal communities from the historical removal of Native children and to preserve tribal identity and relationships

What placement preferences does ICWA establish?

In covered proceedings, ICWA prioritizes eligible members of the child’s extended family, the child’s tribe, or other Native American families, according to statutory preferences

What did Haaland v. Brackeen (2023) establish?

The Supreme Court upheld ICWA against the constitutional challenges decided in the case, recognizing Congress’s authority over Native American tribes and related matters

Why is identifying and notifying a biological father important in adoption proceedings?

• A father with legally protected parental rights may be entitled to notice and may need to consent or have his rights terminated

• Failure to comply with notice procedures can jeopardize an adoption’s validity

What was the holding in Krukemyer v. Forcum (2012)?

The Sixth Circuit affirmed dismissal of a biological father’s claims against an adoptive father’s attorney concerning alleged failures to comply with adoption-notice procedures

Why did the constitutional due process claim fail in Krukemyer?

The attorney represented a private client and was not a state actor, as required for the father’s constitutional claim

Why did the fraud and intentional infliction of emotional distress claims fail in Krukemyer?

• The father failed to establish the necessary misrepresentation or a duty owed personally to him for fraud

• The alleged conduct also did not meet the demanding standard for intentional infliction of emotional distress

Does a biological father automatically win a challenge if adoption-notice procedures were allegedly mishandled?

No: He must establish the legal elements of the particular claim he brings

What is wrongful adoption?

An adoption agency’s fraudulent misrepresentation or concealment of material information that prospective adoptive parents need to make informed decisions

What elements must parents establish for a fraud claim involving wrongful adoption?

• A false material representation

• Intent to deceive

• Justifiable reliance

• Resulting monetary loss

What types of information may be material in a wrongful-adoption claim?

• Significant medical or psychiatric history

• Hereditary conditions

• Known behavioral problems

• Abuse history

• Developmental concerns

What was the holding in Ross v. Louise Wise Services (2007)?

• The adoptive parents could pursue compensatory damages because factual issues remained concerning the agency’s concealment of material psychiatric history and resulting financial losses

• Punitive damages were denied, and negligence and intentional infliction of emotional distress claims were time-barred

Why were punitive damages denied in Ross v. Louise Wise Services?

The agency’s conduct did not meet the high standard of malicious or exceptionally reprehensible wrongdoing required for punitive damages

What is the difference between compensatory and punitive damages?

• Compensatory damages reimburse losses caused by wrongdoing

• Punitive damages punish and deter especially reprehensible conduct; intentional wrongdoing alone is insufficient

Can adoptive parents return or abandon an adopted child simply because parenting becomes difficult?

No: Adoption creates a legal parent-child relationship and continuing parental responsibilities. Parents must pursue lawful remedies rather than abandon the child

What legal lesson does the Torry Hansen and Artyom Savelyev incident illustrate?

• Alleged agency misrepresentations do not authorize abandonment

• Adoptive parents remain responsible for the child and must seek appropriate legal remedies

What is the general constitutional principle from DeShaney v. Winnebago County Department of Social Services (1989)?

The Due Process Clause generally does not impose an affirmative duty on the state to protect individuals from private violence

What was the holding in Milburn v. Anne Arundel County Department of Social Services (1989)?

The Fourth Circuit affirmed dismissal of the child’s § 1983 complaint because the allegations did not establish a valid constitutional claim against the defendants

Why did the constitutional claims fail in Milburn?

• The child had been voluntarily placed in foster care by his parents, and the court found the state had not restrained his liberty in the manner required for the asserted constitutional duty

• The foster parents were not state actors merely because they were licensed and supervised

What is the significance of 42 U.S.C. § 1983 in foster-care cases?

• It allows claims against persons acting under color of state law for violations of federal rights

• A plaintiff must establish the required state action and a violation of a federal right

Does government regulation, funding, or supervision automatically make a private foster parent a state actor?

No: Government involvement alone does not automatically make private conduct attributable to the state

How does parental incarceration affect termination-of-parental-rights proceedings?

• Incarceration may complicate a parent’s ability to participate and maintain family relationships

• Courts must apply governing statutes and consider parental rights, reunification, child safety, permanency, and the child’s best interests

What is the difference between closed, semi-open, and open adoption?

• Closed adoption generally involves no ongoing contact and confidential identifying information

• Semi-open adoption involves limited communication or information exchange

• Open adoption may include direct contact, visits, and continuing relationships

What was the holding in Michaud v. Wawruck (1988)?

The Connecticut Supreme Court held that an agreement for post-adoption visitation is not automatically void if the arrangement serves the child’s best interests

Are open-adoption visitation agreements always legally enforceable?

No: Enforceability varies by state. The child’s best interests may support continued contact, but the governing state law controls

How do access to adoption records and post-adoption visitation differ legally?

• Access to adoption records concerns obtaining identifying or background information

• Post-adoption visitation concerns continued contact with biological relatives. They are separate legal issues

What is the significance of religious Freedom Restoration Act (RFRA) laws in adoption and foster care?

• Depending on the applicable law and circumstances, RFRA laws or similar protections may allow religious exemptions for faith-based agencies

• These raise conflicts between religious liberty, nondiscrimination, and access to services

What did the lecture’s discussion of Maddonna v. HHS illustrate?

• Religious exemptions and federal nondiscrimination requirements can conflict in publicly funded foster care

• The challenge concerning federal funding was dismissed as moot after the agency stopped receiving federal funds

What is standing, and what did the Tennessee foster-care religious-discrimination dispute illustrate?

• Standing is the legal requirement that a plaintiff have a sufficient interest or injury to bring suit

• A finding of standing permits litigation to proceed but does not decide whether the challenged law is constitutional

What federal laws discussed in the notes address human trafficking and child welfare?

• The Victims of Trafficking and Violence Protection Act (TVPA) addresses trafficking and victim protection

• The Preventing Sex Trafficking and Strengthening Families Act of 2014 addresses sex trafficking and aspects of child welfare

Why are children in foster care vulnerable to trafficking, and what is the key intervention principle?

• Instability, trauma, and unmet needs can increase vulnerability to grooming and exploitation

• Intervention should prioritize safety, recognize trauma, and connect victims with practical support rather than primarily treating exploited children as offenders.

General description of Drummond (1977):

Historical race-in-placement decision; later restricted by MEPA

General description of Robert Paul P. (1984):

Adult adoption could not solely formalize a romantic partnership under the court’s interpretation

General description of Michaud (1988):

Post-adoption contact agreements are not automatically void if consistent with the child’s best interests.

General description of DeShaney (1989):

Generally, no constitutional duty to protect against private violence

General description of Milburn (1989):

Voluntary foster placement and state supervision did not establish the asserted § 1983 claim.

General description of Obergefell (2015):

Constitutional right to same-sex marriage

General description of V.L. v. E.L. (2016):

States must recognize valid out-of-state adoption judgments.

General description of Krukemyer (2012):

Private attorney was not a state actor; other claims lacked necessary elements.

General description of Ross (2007):

Concealment of material adoption information may support fraud damages.

General description of Fulton (2021):

Discretionary exceptions made Philadelphia’s policy not generally applicable under the Court’s analysis.

General description of Haaland v. Brackeen (2023):

ICWA survived the constitutional challenges decided by the Supreme Court.

What is the citation for In re T.S.M.?

71 A.3d 251 (Pa. 2013)

What is the core subject of In re T.S.M.?

Addresses the termination of parental rights (TPR) and the legal weight assigned to trauma-based or pathological emotional bonds between parents and abused or neglected children

What is the federal legislation designed to reduce foster care drift?

Adoption and Safe Families Act of 1997 (ASFA) which expedites permanent placements for children in foster care

What is the burden of proof required for statutory grounds under 23 Pa.C.S. § 2511 (a)?

Clear and convincing evidence

What are some examples of statutory grounds for termination under 23 Pa.C.S. § 2511 (a)?

• Repeated incapacity

• Abuse

• Neglect

• Failure to remedy conditions within a reasonable time

• Out-of-home placement

What is the primary consideration under 23 Pa.C.S. § 2511 (b)?

The developmental, physical, and emotional needs and welfare of the child

What is the analysis required by 23 Pa.C.S. § 2511 (b)?

Evaluating whether a parent-child bond exists and whether severing it would cause extreme irreparable harm

What is the requirement under 23 Pa.C.S. § 2512 (b) regarding pending adoptions during TPR petitions?

The petitioning agency is not required to prove that an adoption is presently contemplated or that a specific adoptive parent exists

What is the legal effect of an emotional bond between a parent and child on TPR?

The existence of an emotional bond does not automatically preclude the termination of parental rights

Pathological Bond

An unhealthy, trauma-based attachment where an abused or neglected child normalizes a dysfunctional relationship with a dangerous parent out of survival and lack of alternatives

What is the common judicial handling of detrimental or pathological bonds?

The trauma of severing an unhealthy bond is outweighed by the lifelong benefit of a permanent, safe home

What is the restriction on denying TPR based on lack of immediate adoptive resources?

A trial court cannot deny TPR solely because an adoptive resource is not yet finalized or due to a preference for lesser legal statuses like permanent legal custodianship or open adoption

What is the policy rationale against preserving legal ties to unfit parents due to lack of placement?

Perpetuating legal ties solely to avoid orphan status or due to a lack of immediate placement can foreclose a child’s true hope for permanent adoption

What is the effect of changing a permanency goal from reunification to adoption?

Reunification is no longer a viable primary alternative, extinguishing the requirement for continued intensive reunification services

What law governs involuntary termination of parental rights in Pennsylvania?

23 Pa.C.S. § 2511

What is involuntary termination of parental rights (TPR)?

A court terminates a parent’s legal rights regarding a child without the parent’s voluntary agreement

What is the central consideration in a TPR proceeding?

The child’s developmental, physical, and emotional needs and welfare

What must a court determine to terminate parental rights?

At least one statutory ground under § 2511(a) must apply, and the court must consider the child’s needs and welfare

What is the ground under § 2511(a)(1)?

For at least 6 months immediately before filing, the parent has shown a settled purpose to relinquish the parental claim or has refused or failed to perform parental duties

What is the ground under § 2511(a)(2)?

Repeated and continued incapacity, abuse, neglect, or refusal leaves the child without essential parental care, control, or subsistence necessary for physical or mental well-being, and the causes cannot or will not be remedied

What is the ground under § 2511(a)(3)?

The parent is legally presumed to be the father but is not the child’s natural father

What is the ground under § 2511(a)(4), concerning an unknown parent?

The child is in agency custody; the parent’s identity or whereabouts cannot be determined despite diligent search; and the parent fails to claim the child within 3 months after the child is found

What are the requirements under § 2511(a)(5), concerning removal from the home?

The child has been removed for at least 6 months; the original conditions persist; the parent cannot or will not remedy them within a reasonable time; available services are unlikely to remedy them within a reasonable time; and termination best serves the child’s needs and welfare

What are the requirements under § 2511(a)(6), concerning a newborn child?

The parent knows or should know of the birth, does not live with the child, is unmarried to the other parent, makes no reasonable efforts for substantial and continuing contact for 4 months before filing, and provides no substantial financial support during that same period

What is the ground under § 2511(a)(7)?

The parent is the father of a child conceived as a result of rape or incest

What are the requirements under § 2511(a)(8), concerning extended removal?

The child has been removed for 12 months or more, the original conditions persist, and termination best serves the child’s needs and welfare

What is the ground under § 2511(a)(9), concerning serious crimes against a child?

The parent was convicted of criminal homicide or felony aggravated assault against their child, an equivalent offense in another jurisdiction, or an attempt, solicitation, or conspiracy to commit a qualifying offense

What is the ground under § 2511(a)(10), concerning sexual abuse?

A court of competent jurisdiction found that the parent committed sexual abuse against their child or another child of the parent, based on the specified judicial adjudication under § 6303(a)

What is the ground under § 2511(a)(11), concerning sexual-offender registration?

The parent is required to register as a sexual offender under specified Pennsylvania provisions or under a registry in another jurisdiction or foreign country

Can parental rights be terminated solely because of poverty or environmental conditions beyond the parent’s control?

No. Examples include inadequate housing, furnishings, income, clothing, or medical care

For which grounds may the court not consider efforts to remedy conditions if the efforts began only after notice of the TPR petition?

§ 2511(a)(1), (6), and (8)

What does the post-petition effort restriction mean for § 2511(a)(1), (6), and (8)?

The court cannot consider efforts first initiated after notice of the petition to remedy the specified conditions. This restriction does not automatically apply to every TPR ground

What must the court notify a parent of when sending the termination decree?

In writing, the parent retains the right to place and update personal and medical history information on file with the court and the relevant state department

Does the parent’s right to provide personal and medical history continue if a condition was not present or discoverable at the time of adoption?

Yes