The Ohio 9th. District Court of Appeals last Wednesday upheld a juvenile court’s decision that it lacked jurisdiction in an attempt by a teenage woman to reclaim a child she’d given up for adoption seven months earlier.(Holding)
The woman had presumably voluntarily surrendered her 6-month old baby to a private child placement agency in September 2006 – the agency notifying the juvenile court of the surrendering – and placement – of the child pursuant to ORC § 5103. 15(B)(2). A year later, in April 2007, the mother filed a motion for relief of judgment with juvenile court, asking the court to vacate its acceptance of her consent to the adoption and claiming that her signature on the prescribed forms was not voluntary, but the result of duress & misrepresentation.
The court had initially issued an order finding that ORC 5103. 15(B)(2) did not require the approval of a permanent surrender agreement, only that the court enter it in its journal, but, in light of the woman’s duress allegation, construed her motion as a motion to set aside the agreement and ordered a hearing into the matter, enjoining the placement agency from further pursuing the adoption in the interim.
The agency objected, saying that the duress matter was already before the probate court and was not a juvenile matter. The juvenile court subsequently agreed and vacated its previous standing.
In its review the Appeals Court cited Lemley v. Kaiser(1983), which said Ohio’s adoption statutes are in derogation of the common law and therefore have to be strictly construed, and Kozak v. Lutheran Chldren’s Aid Society(1955), which had held that the validity of a permanent surrender contract executed by a minor parent is not affected by the parent’s minority. Its decision was that the probate court had the authority to consider a request to withdraw consent, but not the juvenile court. [See re Adoption of Pushcar (2006)]
The presiding judge, Hon. Donna Carr, however, noted in a concurring opinion that while “RC 5103.15 (D) indicates that a minor parent may enter into an agreement to permanently surrender a child, and that such an agreement is ‘as valid an agreement entered into by a parent age eighteen or older,’” it was a dubious practice “particularly in light of the fact that contracts by minors are voidable in virtually every other circumstance.” [Citing Zivich v. Mentor Soccer Club (1998) and Bramley’s Water Conditioning v. Hagen (1985)].
An Akron Beacon Journal article on the case, yesterday, said that according to the Child Welfare Information Gateway, a service of the U.S. Department of Health & Human Services, “only Louisiana, Michigan, New Hampshire, Rhode Island, Guam, and Puerto Rico require the consent of the minor’s actual parents in an adoption.”
Sidebar to the topic here at hand is the Ohio General Assembly’s “intent to reform Ohio’s adoption laws by ensuring timely, safe, and appropriate adoptive placements, reducing adoption expenses, and generally promoting adoption in Ohio.” House Bill 7 was introduced in February of last year by Rep. Tom Brinkman and is in the House’ Health Committee, where it’s being amended at present. Portions of the legislation, such as Juvenile/Probate Court’s jurisdiction over adoptions, as central in this case is not addressed. (See Legislative Service’s analysis)
Friday, February 29, 2008
Wednesday, February 27, 2008
Ohio's "Shaken Baby Syndrome" Law
Ohio has a new “shaken baby syndrome” law that becomes effective Friday, February 29th --- the first in the country that will attempt to notate and track deaths and injuries associated with that behavior. (Article)
“Shaken baby syndrome” is a concept that evolved out of the work & observations of Drs. John Caffey and Norman Guthkelch in the early 1970s which described death or injury incurred by young children from being violently shook. A number of states have passed legislation viewing “shaken baby syndrome” as a form of child abuse, including Indiana, which passed its statutes in 1998. The majority center around educational programs
Ohio’s initial attempt at “shaken baby syndrome” legislation was back in 2003 with a bill that died in the Senate in May of that year. There were major changes in Ohio child care, welfare and adoption laws in 2006, notably the establishment of a “uniform statewide automated child welfare information system as a collection point of information regarding investigations of known, threatened, or suspected cases of child abuse or neglect.” The bill here concerned was introduced in April and passed by November 2007. Its perhaps most notable section is that calling for public children services agencies making a report of investigations in the automated child welfare information system to add notations “in each case of child abuse that indicates whether the abuse arose from an act that caused the child to suffer from, or resulted in the child suffering from, shaken baby syndrome,” and an annual report compiled thereafter.
There is some dispute over the legal implications of “shaken baby” characteristics which has resulted in not all of the states taking as proactive an approach as others. Kentucky is a good example of this other position. In April 2006 there was a “Daubert hearing” in Greenup County Circuit Court to determine the admissibility of proposed medical and scientific evidence, with the Commonwealth’s case based upon the testimony of shaken baby syndrome experts. The testimony was barred, with that court concluding that “SBS has not gained wide or general acceptance in the scientific community for the purposes of allowing an expert to testify that a baby has been subjected to abuse …the medical signs & symptoms, clinical medical and scientific research communities are in disagreement… Therefore the Court finds that because the Daubert test has not been met, neither party can call a witness to give an expert opinion….” That decision is currently being appealed but has progressed no further. ( Also See Here for more information)
Similar legislation to that on the state level was introduced in the House of Representatives in 2006 and again in April of last year .
Analysis of Ohio Bill
Ohio Revised Code
“Shaken baby syndrome” is a concept that evolved out of the work & observations of Drs. John Caffey and Norman Guthkelch in the early 1970s which described death or injury incurred by young children from being violently shook. A number of states have passed legislation viewing “shaken baby syndrome” as a form of child abuse, including Indiana, which passed its statutes in 1998. The majority center around educational programs
Ohio’s initial attempt at “shaken baby syndrome” legislation was back in 2003 with a bill that died in the Senate in May of that year. There were major changes in Ohio child care, welfare and adoption laws in 2006, notably the establishment of a “uniform statewide automated child welfare information system as a collection point of information regarding investigations of known, threatened, or suspected cases of child abuse or neglect.” The bill here concerned was introduced in April and passed by November 2007. Its perhaps most notable section is that calling for public children services agencies making a report of investigations in the automated child welfare information system to add notations “in each case of child abuse that indicates whether the abuse arose from an act that caused the child to suffer from, or resulted in the child suffering from, shaken baby syndrome,” and an annual report compiled thereafter.
There is some dispute over the legal implications of “shaken baby” characteristics which has resulted in not all of the states taking as proactive an approach as others. Kentucky is a good example of this other position. In April 2006 there was a “Daubert hearing” in Greenup County Circuit Court to determine the admissibility of proposed medical and scientific evidence, with the Commonwealth’s case based upon the testimony of shaken baby syndrome experts. The testimony was barred, with that court concluding that “SBS has not gained wide or general acceptance in the scientific community for the purposes of allowing an expert to testify that a baby has been subjected to abuse …the medical signs & symptoms, clinical medical and scientific research communities are in disagreement… Therefore the Court finds that because the Daubert test has not been met, neither party can call a witness to give an expert opinion….” That decision is currently being appealed but has progressed no further. ( Also See Here for more information)
Similar legislation to that on the state level was introduced in the House of Representatives in 2006 and again in April of last year .
Analysis of Ohio Bill
Ohio Revised Code
Tuesday, February 26, 2008
New Ohio Rules of Court Superintendence
Amendments to Rules 19 and 19.1 of the Ohio Rules of Superintendence become effective this Saturday, March 1st.
Rule 19 now requires that “magistrates be engaged in the practice of law and in good standing with the Supreme Court for at least four years at the time of their appointment. Rule 19.1 makes it mandatory for all municipal court having more than two judges “to appoint one or more magistrates to hear specific proceedings.”
Press Release
Rule Amendments
Rule 19 now requires that “magistrates be engaged in the practice of law and in good standing with the Supreme Court for at least four years at the time of their appointment. Rule 19.1 makes it mandatory for all municipal court having more than two judges “to appoint one or more magistrates to hear specific proceedings.”
Press Release
Rule Amendments
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