Why legal counsel is crucial in ensuring successful permanent placement of children

On June 11, 2024, the California Court of Appeal issued a decision in In Re: Andrew M., concerning whether to terminate the parental rights of 5-year-old Andrew’s biological parents. His long-term foster parents sought to adopt him. The case highlights the critical role counsel play not just for foster parents, but also in non-dependency cases.

Andrew was born in December 2021 with methadone in his system. The Orange County Social Services Agency filed a petition alleging that the biological parents’ drug abuse and history of domestic violence placed Andrew at risk. (Before Andrew’s birth, his parents’ substance abuse and criminal history resulted in the 2019 termination of their parental rights over their two older children.)

In an early January 2022 hearing, the juvenile court agreed to take jurisdiction over Andrew. He was released from the hospital and placed with a foster family. The juvenile court gave Andrew’s biological parents visitation rights. Although they were warm and affectionate when they were with Andrew, Andrew’s biological parents missed visits, arrived late or left early, and failed to attend Andrew’s medical appointments. In addition, the biological parents missed “numerous” scheduled drug tests.

The court held a permanency hearing in November 2023 after multiple continuances and delays. Adoption is the Legislature’s preferred permanent plan at these hearings because it gives children the best chance of long-term stability and security. But there is a parental-benefit exception to terminating rights. A parent claiming the exemption applies has the burden of establishing three things: (i) regular visitation with the child, considering the extent of visitation permitted; (ii) the child has a substantial, positive emotional attachment to the parent; and (iii) terminating the attachment would be detrimental to the child even when balanced against the countervailing benefit of a new, adoptive home.

Andrew, then a toddler, was doing well under the care of the foster parents who sought to adopt him. The SSA asked the juvenile court to terminate the biological parents’ parental rights, arguing that Andrew was likely to be adopted and that no exception to the legislative presumption in favor of adoption applied. Andrew’s counsel agreed with the SSA’s position. The biological parents argued that the parental-benefit exception applied, pointing to their warm visits with Andrew and the fact that Andrew was part of a “huge family” that included his biological family, half-siblings, and other extended relatives.

Finding that Andrew had a substantial, positive emotional attachment with his parents and that the parents offered a connection to a broader family that Andrew had benefitted from, the juvenile court said that the parental-benefit exception applied, set guardianship as Andrew’s permanent plan, ordered that the biological parents receive weekly supervised visits with Andrew, and terminated the proceedings.

Andrew’s court-appointed counsel appealed on Andrew’s behalf. The Court of Appeal ruled that the juvenile court abused its discretion in failing to terminate parental rights and designating legal guardianship, rather than adoption, as the permanent plan for Andrew. Specifically, the Court of Appeal held that there was no evidence that the biological parents played a meaningful role in Andrew’s life, and that there was no evidence of any specific harm that Andrew would likely or potentially suffer from the termination of parental rights. The Court of Appeal stated that the juvenile court improperly relied on Andrew’s relationship with members of the “broader family.” The Court of Appeal also emphasized that delays in establishing permanency harms children, especially those as young as Andrew, due to their “unique developmental needs.”

The scenario in In re: Andrew M. is sadly familiar. According to the U.S. Census Bureau’s 2022 Current Population Survey, approximately 4% of children do not live with a parent. While the juvenile court must appoint counsel for biological parents, adopting parents, and children in foster care, as was the case in In re: Andrew M., there are a sizeable number of children facing safety and abandonment issues who never enter foster care because grandparents, great-grandparents, aunts, uncles, siblings, and others, step up for a vulnerable child.

Unlike in dependency, the adopting parents in non-dependency adoptions are responsible for initiating the termination action. These adopting parents are not entitled to counsel, although the biological parents are, so those with modest means and unable to afford an attorney must proceed as self-represented. The Los Angeles Superior Court is cognizant of the impact on modest income families and does its best to appoint counsel for those of very minimal means in contested cases but cannot for those with modest means. These families don’t have any of the supportive services offered to families in dependency. Children with medical needs, disabilities, parents with mental health issues, addiction, or incarceration add to the complexity of these cases.

These caregivers struggle with the court process, sometimes inadvertently creating delays due to their own lack of legal knowledge. The inability to successfully publish notice stalls many cases for those unable to locate the parents to serve them with process. Lack of fluency in English and inability to navigate technology also create barriers. Parents who evade service, fail to timely participate in appointments with an expert to assess for bonding, attachment, and the child’s best interest, and are otherwise uncooperative add to the delays in establishing permanency that harm children. For example, adopters on fixed and limited Social Security incomes cannot apply for derivative Social Security benefits for the child until the adoption is finalized.

It is critical that modest income families have competent counsel to assist them with their custody and adoption issues. LevittQuinn Family Law Center is a private nonprofit law firm. Our Adoption Project provides free and sliding scale independent adoption legal services to prevent vulnerable children from entering foster care and ensure that the adults who step up for them have the legal help they need. We have helped finalize thousands of adoptions for modest income families over the past 20 years and hope to continue to use our legal expertise to create stable, permanent, and loving homes through independent (non-dependency) and step-parent adoption long into the future.