Fox Asks "Who's Your Daddy?"

Just when I think I don't have time for blogging . . . along comes the defender of red state America with "Who's Your Daddy?" - a reality television show featuring "a young woman, adopted at birth, and her biological father" who are reunited before a live national audience.

Sounds innocent enough, "but wait, there's a twist . . ." Before meeting her dad, "the young woman will be presented with eight men, all claiming to be her father (no comments about her biological mother now), and she must determine which one really is." Even better, "there is $100,000 at stake!" (How this fits in is a bit vague.)

Rumor has it that this show is sponsored by Saks Newborn Nursery Adoption Centers and Adoption.com's Adoption DNA testing (no cheating now). Loosing contestants will receive an "adoption fine art reprint" of the legitimate illegitimate contestant with her REAL father.

Thank the adoption gods for Adam Pertman, executive director of the Evan B. Donaldson Adoption Institute, who has turned his ire from the Adopt-a-Highway program to this unbelievable show.

According to Pertman, "the very idea [behind the show] is perverse and offensive. By turning adoption reunions into a game show, "Who's Your Daddy?" takes an intensely personal and complex situation - and an increasingly commonplace one - and transforms it into a voyeuristic display."

Now if only those dolls could speak and tell us who their REAL daddies are. Is that adoption music I hear playing in the background . . .

Saks Pioneers Newborn Nursery Adoption Centers

Last month the Middleton Doll Company announced it will expand its Newborn Nursery® Adoption Centers into five additional Saks Department Stores.

"The expansion of this unique award-winning retail concept into additional Saks Incorporated stores will enable many more young girls to experience the 'adoption' of their very own lifelike baby doll in a simulated hospital nursery setting," said George R. Schonath, president and chief executive officer of The Middleton Doll Company.

With chubby cheeks, bright eyes, soft hair and an incredibly lifelike face, the Newborn Nursery baby dolls are so realistic they look like a real baby. The Newborn Nursery centers provide the perfect setting for the "adoption" experience.

Once a young girl looks through the Newborn Nursery hospital viewing window and selects her very own Newborn Nursery baby doll from a wide variety of hair, skin and eye color combinations, a store associate dressed like a nurse helps her complete official Newborn Nursery "adoption" papers.

The parent-to-be must promise to read stories to her new baby doll and take her to the park. And of course, the parent-to-be can name her baby doll whatever she likes. Once the "adoption" certificate is complete, the parent-to-be dons a hospital gown and watches the "nurse" carefully carry her baby doll out of her crib to a changing table for a baby doll check-up.

The new parent-to-be is given careful instructions on how to properly care for her baby doll while the "nurse" checks the baby doll's "heartbeat" and powders the real diaper. Once the "nurse" determines the baby doll is healthy enough to be "adopted," the parent-to-be is able to hold her new baby doll for the first time.

No word on whether adoption subsidy or post-adoption services are available. Perhaps Saks should team up with the Child Welfare League of America to place REAL foster children into these nurseries! Adoption.com could sell keychains and fine art reprints. Shoppers would enjoy specials and periodic markdowns, 10% off coupons and special two for one deals. The nurse would surely be more efficient than our nation's family court system in finalizing the adoptions. The possibilities are endless. I'm betting a franchise of this operation will reduce the adoption backlog to zero. Wal-Mart anyone?

Shared Custody Battle Goes Federal

Last week a federal lawsuit was filed against the state of Pennsylvania by the Indiana Civil Rights Council and like-minded groups such as the American Coalition for Fathers and Children. These and similar organizations plan to sue all 50 states and U.S. territories. At least 40 suits have already been filed, according to the Council.

The lawsuits use a wide range of constitutional grounds to argue that a child's parents both have an equal right to custody and directly challenge the commonly utilized legal standard known as "the best interest of the child."

The lawsuits seek $1 million in damages for any plaintiffs who sign on to each class action, meaning the potential damages run into the trillions nationwide. But what the groups really want are changes in the laws to provide a "presumptive standard" that physical custody should be split 50-50 unless one parent can prove that there's a good reason for a different arrangement.

Legal custody, which gives both parents a say in issues such as religion, health and education, can be shared equally even when physical custody is not.

But many of the experts say legislating a 50-50 standard is a bad idea. What do you think?

Pepe Le Pew? The Commission's Report on Children in Foster Care

In late May the Pew Commission on Children in Foster Care released its final report. The Commission "was charged to develop a practical set of policy recommendations to reform federal child welfare financing and strengthen court oversight of child welfare cases."

I must admit that I was and continue to be a bit skeptical about the Commission and its underlying premise. Who exactly charged the Commission with this mission? Who identified "child welfare financing" and "court oversight" as the critical issues facing child welfare and foster care?

The Commission was premised on the notion that "current federal funding mechanisms for child welfare encourage an over-reliance on foster care at the expense of other services to keep families safely together and to move children swiftly and safely from foster care to permanent families, whether their birth families or a new adoptive family or legal guardian."

The Commission also surmised that "longstanding structural issues in the judicial system limit the ability of the courts to fulfill their shared obligation to protect children from harm and move children safely and appropriately through the system to safe, permanent homes."

The Executive Summary concludes "reform in these two areas is a critical first step to solving many other problems that plague the child welfare system."

Well . . . what do you think? Is federal child welfare financing and court oversight the two lead issues in your town, county or state? Read on for the key components of the Commission's recommendations. And stay tuned because next week I will tackle the Commission's recommendations on courts and child representation.

The key components of the Commission’s financing recommendations are:

• Preserving federal foster care maintenance and adoption assistance as an entitlement and expanding it to all children, regardless of their birth families’ income and including Indian children and children in the U.S. territories;

• Providing federal guardianship assistance to all children who leave foster care to live with a permanent legal guardian when a court has explicitly determined that neither reunification nor adoption are feasible permanence options;

• Helping states build a range of services from prevention, to treatment, to postpermanence by (1) creating a flexible, indexed Safe Children, Strong Families Grant from what is currently included in Title IV-B and the administration and training components of Title IV-E; and (2) allowing states to “reinvest” federal and state foster care dollars into other child welfare services if they safely reduce their use of foster care;

• Encouraging innovation by expanding and simplifying the waiver process and providing incentives to states that (1) make and maintain improvements in their child welfare workforce and (2) increase all forms of safe permanence; and

• Strengthening the current Child and Family Services Review process to increase states’ accountability for improving outcomes for children.

The Commission’s court recommendations call for:

• Adoption of court performance measures by every dependency court to ensure that they can track and analyze their caseloads, increase accountability for improved outcomes for children, and inform decisions about the allocation of court resources;

• Incentives and requirements for effective collaboration between courts and child welfare agencies on behalf of children in foster care;

• A strong voice for children and parents in court and effective representation by better trained attorneys and volunteer advocates;

• Leadership from Chief Justices and other state court leaders in organizing their court systems to better serve children, provide training for judges, and promote more effective standards for dependency courts, judges, and attorneys.

From the Pew Commission on Children in Foster Care Executive Summary

Pregnant by God or Blessed for Adoption?

First there was adoption music, then adoption sermons, even adoption recipes, jewelry and an ISP. Adoption.com is a virtual adoption marketplace; everything adoption is for sale except the children.

Then the National Center for Lesbian Rights sued Adoption.com for discriminating against same-sex couples.

The lawsuit alleges that among other for-profit services, Adoption.com permits prospective adoptive parents to post their personal profiles in hopes of connecting with potential birth mothers. They will not, however, permit same-sex couples to post their profiles.

Now adoption art has surfaced on the Adoption.com website which provides interesting insight. From God's Hands, To My Hands, To Yours is an "adoption fine art reprint" (now on sale) depicting a bearded god blessing the relinquishment of a cherubic baby from a smiling teenage girl to a loving Anglo Saxon heterosexual couple.

The original art by Dan Lewis is ranked one star by the majority of purchasers, most of whom found it offensive. Not to worry, however, adoption DNA testing, also available at Adoption.com, should resolve any issues about the angelic birth depicted in From God's Hands. If only the Kenyan miracle babies had this testing. Gilbert Deya would soon be out of business! (See Children's Law Blog entry Pregnant by Jesus or Abducted for Adoption).

No word from Adoption.com's content providers which include the well-respected National Center for Adoption Law & Policy and Evan B. Donaldson Adoption Institute

Confidential Child Welfare Records Released on the Internet

In another black eye for Florida's child-welfare agency, officials acknowledged that confidential records for nearly 4,000 abused and neglected children were available on the Internet until last week.

The files were accessible on the Web site of Kids Central, a privately run child welfare agency. They included the names of foster children, birth dates, Social Security numbers, photographs and case histories. They even provided directions and maps to children's foster homes.

Kids Central began phasing in the computer system, called CoBRIS, around April or May. It was designed to let private caseworkers access the state's child welfare computer system, called HomeSafenet, using the Internet.

The confidential information was available because computer help desk officials allowed all support requests to be viewed online, without passwords. Many of the requests came from caseworkers who had trouble gaining access to HomeSafenet. Some of the replies included user names and passwords to access the confidential files.

Pregnant by Jesus or Abducted for Adoption?

The story of Gilbert Deya, and his "miracle" babies, was first aired on the BBC Radio 4's Face the Facts. Apparently women are traveling from the UK to Nairobi to give "birth" to children in slum clinics.

According to a BBC investigation, Kenyan-born Deya prays over the childless women, some post-menopausal, and they are pronounced pregnant by Jesus. One woman gave birth every four months to a total of eleven children. Talk about faith-based initiatives!

When the British authorities did DNA tests on one of the "miracle" babies, however, the child was found to have no link to the alleged mother. The church itself says it is not surprised that the babies don't share their parents' DNA because they don't come from their parents but from God.

"Kenya is actually a country where you can buy babies," says Millie Odhiambo of The Cradle, a legal rights organization. She says poor adoption procedures, combined with corruption and poverty, are to blame.

"The information that we are receiving is that the lighter-skinned the child is, the more expensive the child."

In Kenya, the front-page picture of the children seized from the homes of the British parents offered a ray of hope to more than 50 couples. Children they had given up for dead may actually be alive.

Meanwhile in Sierra Leone three people have been arrested and charged with smuggling 29 children to the United States for adoption.

States Clash Over Same-Sex Parental Rights

Four years ago, when courts in Vermont began recognizing the legality of same-sex civil unions, it was only a matter of time before cases came along to test whether sister states would give full faith and credit to those decisions.

The time has come.

One of the earliest cases to raise that issue is a same-sex parental rights challenge that has provoked a jurisdictional debate between Virginia and Vermont. According to an attorney for New York-based Lambda Legal Defense and Education Fund, it is also one of the earliest cases to test how state courts will respond to orders that derive from the legality of civil unions.

The main legal issue is whether a civil union, without more, creates a parental relationship. Application of the federal Parental Kidnapping Prevention Act, which prevents a parent from filing a cutsody case in another state in order to avoid the jurisdiction or an adverse order of the original state, will be crucial. State and federal "defense of marriage" acts will also be relevant.

According to the Lambda Legal Defense and Education Fund, 40 states have passed laws prohibiting same-sex marriage since President Clinton signed the Defense of Marriage Act in 1995.

Only three states recognize same-sex unions. They are Vermont; Hawaii, which offers reciprocal benefits; and Massachusetts, which allows same-sex marriage.

The Circle School v. Pappert

Pennsylvania law mandates that all public, private, and parochial schools display the national flag in every classroom and provide for the recitation of the Pledge of Allegiance or the national anthem at the beginning of each school day.

Like similar statutes in other states, the law allows private and parochial schools to opt out of its requirements on religious grounds, and gives students the option of refraining from participating in the recitation and saluting the national flag on religious or personal grounds. However, it also requires school supervising officials to notify, in writing, parents or guardians of those students who have declined to join in the recitation or salute the flag.

The Third Circuit Court of Appeals recently held that the parental notification provision of the law violates the school students' First Amendment right to free speech and is therefore unconstitutional. It also held that certain of the law's remaining provisions violate private schools' First Amendment right to free expressive association.

The Court held that Pennsylvania's reliance on parental notification in abortion cases as justification for parental notification for failure to recite the Pledge of Allegiance was fundamentally

misplaced. The Court found that the abortion decisions were rendered under a different provision of the Constitution, invoked a different set of competing interests and rights, and involved parental notification schemes that are differently structured.

The abortion cases are grounded on individuals’ rights under the Due Process clause of the Fourteenth Amendment rather than the Free Speech clause of the First Amendment, and the interests involved in those cases-the maturity of the pregnant minor seeking abortion, the significant third-party effects such abortions may have, and the state’s interest in protecting the fetus-are wholly different from the state’s provision of proper educational curriculum and the students’ right to be free from compelled expression.

The Court reasoned that the Pledge of Allegiance notification requirement constitutes viewpoint discrimination that must survive strict scrutiny in order to be held constitutional. When the imposition of such government authority is based on the content of the speech, such regulations which permit the Government to discriminate on the basis of the content of the message cannot be tolerated under the First Amendment.

But when the regulations in question go beyond content discrimination and turn on the specific views expressed by a speaker, such viewpoint discrimination is an egregious form of content discrimination and the government must abstain from regulating speech when the specific

motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction.

The Court concluded tha Pennsylvania’s parental notification clause clearly discriminates among students based on the viewpoints they express; it is only triggered when a student exercises his or her First Amendment right not to speak. A student’s decision to recite the Pledge of Allegiance or the national anthem, and thereby adopt the specific expressive messages symbolized by such an act, does not trigger parental notification.

On the other hand, a student’s refusal to engage in the required recitation leads to a written notice to his or her parents or guardian, and possibly parental sanctions. Given that the purpose of the bill is to support the recitation of the Pledge of Allegiance or the national anthem in schools, a parental notification clause that is limited only to parents of students who refuse to engage in such recitation may have been purposefully drafted to chill speech by providing a disincentive to opting out of Act.

The Supreme Court has repeatedly stated that constitutional violations may arise from the deterrent, or chilling, effect of governmental regulations that fall short of a direct prohibition against the exercise of First Amendment rights. The Pennsylvania parental notification clause unconstitutionally treads on students’ First Amendment rights.

State v. Nguyen

In this Oregon case, the parents appealed a judgment terminating their parental rights in their three-year-old son Matthew. They argued that the state failed to prove by clear and convincing evidence that they are unfit parents, that reintegration into their home is improbable within a reasonable time because they are unlikely to change, and that termination of their parental rights was in Matthew's best interest.

The TPR was filed after one of the parents inflicted serious abuse on Matthew's sibling, four-month old Martha, repeatedly breaking her limbs and fracturing her skull. The lower court found that the other parent was aware of that conduct and that neither party acknowledged responsibility.

After Matthew was born, the mother and father remained together, continued to maintain that they did not know how or why Martha was abused, and refused to engage in the process of identifying and curing the problems that led to Martha's injury.

The parents argued that they cooperated with the state and the investigation of the circumstances of the injuries sustained by Martha. Over a period of more than three years, the parents engaged in numerous services, such as parenting classes, visitation, psychiatric and psychological evaluations and individual and couples' counseling.

The Oregon Court of Appeals found that although the case is not easy to decide and that there is a legitimate concern regarding the safety of Matthew in light of the unexplained injuries to Martha, the state failed to meet its burden by clear and convincing evidence that it is highly probable that father and mother are not presently able, or will not be able within a reasonable time, to meet the physical and emotional needs of Matthew. It denied the termination of parental rights.

The Court found that the difficulty in deciding this case was exacerbated by the inherently speculative process of predicting a risk of future harm, a process that the state's three expert witnesses expressly refused to undertake regarding Matthew's situation.

A lone dissenter found that the testimony established that the parent who abused Martha cannot be treated until that parent acknowledges responsibility for Martha's injuries. He also found that the testimony established that, until the parent responsible for Martha's injuries comes forward, further abuse cannot be avoided and Matthew's safety is therefore at risk.

Adoptive Mother Abandons Children in Africa

In one of the more bizarre stories I've encountered, seven adopted American children, ages 8 to 17, were recently discovered in an African orphanage. The adoptive mother, Mercury Denise Liggins, had apparently left the children with a relative in Nigeria while she went to work for Haliburton in Iraq. After the children were discovered by a passing missionary, House Majority Speaker Tom DeLay, Senator John Cornyn and State Department officials intervened to return the children to Houston. The children, who were born and raised in Texas, were placed with Liggins by Houston Child Protective Services when their biological parents' rights were terminated. They have complained of abuse and neglect while in Liggins' care. They were not mistreated in the Nigerian orphanage.

Doe v. Little Rock School District

This case required the court to decide whether the practice of the Little Rock School District that subjects secondary public school students to random, suspicionless searches of their persons and belongings by school officials is unconstitutional. The Eighth Circuit Court of Appeals held that such searches violate the students' fourth amendment rights because they unreasonably invade their legitimate expectations of privacy.

Wong v. Regents of the University of California

In this rare but increasingly common Section 504 educational accommodation case, the liberal Ninth Circuit Court of Appeals held that a successful but learning disabled student was not entitled to special accommodations. The student, whose reading comprehension scores when allowed to read without time limits were at the 99.5 percentile, but under time constraints at the eighth grade level, was deemed not disabled under Section 504.

Highlights from the court's decision follow:

"That is not to say that a successful student by definition cannot qualify as “disabled” under the Acts. A blind student is properly considered to be disabled, because of the limitation on the major life activity of seeing, even if she graduates at the top of her class. Nor do we say that a successful student cannot prove “disability” based on a learning impairment. A learning-impaired student may properly be considered to be disabled if he could not have achieved success without special accommodations. But a student cannot successfully claim to be disabled based on being substantially limited in his ability to “learn” if he has not, in fact, been substantially limited, as that term is used in the Acts.

The relevant question for determining whether Wong is “disabled” under the Acts is not whether he might be able to prove to a trier of fact that his learning impairment makes it impossible for him to keep up with a rigorous medical school curriculum. It is whether his impairment substantially limits his ability to learn as a whole, for purposes of daily living, as compared to most people. The level of academic success Wong has achieved without special accommodation

precludes the possibility that he could establish that he is disabled under the Acts based on a learning impairment. Wong is not less able to “learn” than most people. His record proves the contrary.

Nothing in this decision precludes a student from receiving accommodations or prevents a school from providing them. The question is whether the federal Acts compel the school to provide accommodations. Our answer to that question is not “no” (as the dissenting opinion implies) or “yes, always,” but “yes, sometimes.” The determining factor is whether the student is “disabled” under the terms of the Acts.

The term “learning disability” is commonly used. In the current context that term can be misleading, however, for it is clear that a person who has a “learning disability” is not necessarily “disabled” under the Acts. The Acts use the term in a narrower fashion, to cover only those persons who have an impairment that substantially limits one of the major life activities. . . Although he may have a learning disability, Wong is not substantially limited in the life activity of “learning” as compared to most people. The law compels accommodations for someone who is “disabled” as that term is used in the Acts, but not for everyone who may have a condition described as a “learning disability.”

As for the activity of reading, Wong’s contention was not that he could not read, but that, as a result of his learning disability, he read very slowly and often had to re-read material several times. He cited evidence, for instance, that his reading comprehension scores, when allowed to read without time limits, were at the 99.5 percentile, but under time constraints he read at the eighth grade level.7 In essence, it was argued that Wong read slowly, especially when compared to his own reading comprehension ability without time limits, or to others in his academic peer group. He did not, however, present evidence to the district court or argue to us that he was substantially limited in his ability to read for purposes of daily living, or as compared to what is important in the daily life of most people. That is the appropriate standard.

Welcome Back

Welcome to our Children's Law Blog! After numerous attempts over the past year to find an acceptable blogging solution, we have finally launched the latest edition of MovableType's excellent blogging software. This site will feature commentary, analysis and insights into the emerging issues of children and the law. We will feature daily case law summaries and breaking news on a variety of topics. Check back often for the latest updates!

Teenage Sex and Mandatory Minimums

There must be something in the water in Georgia. Yesterday, the Georgia Supreme Court wrestled with how mandatory minimum sentencing laws treat teenagers who are caught engaging in consensual sex.

In the case before the court, Marcus Dwayne Dixon, a black 18-year-old high school football player, was accused and acquitted of raping a white 15-year-old female classmate.

But Dixon was convicted of misdemeanor statutory rape and aggravated child molestation, one of the so-called "seven deadly sins" for which Georgia law requires at least a 10-year prison term.

A star athlete with a 3.96 grade-point average, Dixon had accepted a full scholarship to Vanderbilt University. He now sits in a Georgia prison cell.

Teenagers and sex - another controversial topic. And one of importance for the adoption and child welfare community. What if the girl became pregnant and placed the baby for adoption. Should this father have parental rights? Should he be listed on the state's sex offender registry? Is his conviction a legitimate "aggravating circumstance" leading to a limitation of his parental rights now and in the future?

Read all about this case at Law.com

For further background click here.

2003 Tax Benefits for Adoption

The tax benefits for adoption are numerous and a bit complicated.

This year adoptive parents may be able to take a tax credit of up to $10,160 for qualifying expenses paid to adopt an eligible child. Also, up to $10,160 paid or reimbursed by an employer for qualifying adoption expenses under an adoption assistance program may be excludable from gross income. Adoptive parents may claim both a credit and an exclusion for expenses of adopting an eligible child.

Finally, beginning in 2003, the maximum credit and exclusion of $10,160, subject to certain income and tax liability limits, will be allowed for the adoption of a child with special needs even if the adoptive parents do not have ANY qualifying expenses. This "refundable credit" has long been sought by adoption advocates.

Read all about these important adoption tax benefits and pass this information along!

MEPA Bombshell Hits Hamilton County Ohio

In an unprecedented move, the federal Office for Civil Rights (OCR) issued a Letter of Finding to Hamilton County Ohio with a determination that the county violated the civil rights of children eligible for adoption and of foster families and other prospective adoptive families. After an extensive investigation OCR discovered that the county violated MEPA by making adoption determinations on the basis of race, rather than on the basis of the individual needs of the children.

The cited violations included instances where non-African-American foster families were improperly prevented from adopting African-American children in their care with whom they had formed a close bond, because of racial considerations.

According to OCR, in the past five years, they have initiated more than 130 investigations of racial discrimination in adoption and foster care. In most of these cases, they reached a satisfactory conclusion with federal grantees, either finding no violation or working with grantees to make needed changes in their programs. The Hamilton County case is the first instance in which OCR issued a MEPA/Section 1808 Letter of Finding that the civil rights of individual children or prospective adoptive or foster parents were violated. Reportedly, this action was necessary due to the prolonged history of discrimination of this kind by the county program and the failure to reach agreement on effective corrections.

In response to the OCR investigation, HHS imposed an unheard of $1.8 million fine!

Race in adoption - a big issue. Read the OCR Report.

Check out the statement by Richard Campanelli HHS Office for Civil Rights Director.

For more on this topic see this article on Adoption Affirmative Action in Iowa.

Your comments please!

Judge's Adopted Preschool Daughter Left Alone

I don't believe in sparing any sacred cows (or mad cows for that matter) and now it's time for the legal system - a judge no less - to take some hits. Apparently in late November a Fulton County, Georgia juvenile court judge left her 4-year-old adopted daughter home alone at 11 PM to retrieve a piece of luggage from the airport. The girl was found alone on the street late at night after she fled the house. The judge has agreed that she will not sit in judgment of other parents until authorities have completed their investigation into her conduct.

Read all about it at Law.com

More on this story from the Atlanta Journal Constitution

Reform advocate Richard Wexler voices his opinion.


Breaking News Judge Resigns

Should the judge resign? Can she get a fair investigation? How will this affect her judgment on future neglect cases?