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We (my wife and I ) are currently in trial, battling over our fost-adopt son who we've had since birth (22 months) with his bio mother. The mother is not in reunification, and the case is titled Best Interests of the Child. We are almost certainly on the fast track to keep our son, but suddenly, the mothers attorney is claiming the mother wasnt notified at the six month disposition hearing ( which she did NOT attend ) that she had six months to reunify. The court records show that she wasnt. We are now in trial 18 months later, and moms attorney wants her reunification rights reinstated, which would effectively kill our chances. The judge is looking for legal precedent saying he has to give her her rights back, and if he cant find it, he will rule her rights were waived due to her not bringing this up till 18 months later. My question is, does anyone know if mom can do this , or (hopefully) is it to late? By the way her and her attorney were at the 12 month hearing and NEVER mentioned this. We reside in California. Thanks for any help at all!
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I am so sorry to hear of all of this coming up this far along in the process.
I am finding it difficult to believe that this will actually result in the birthmother regaining her rights.
The ASFA (Adoption and Safe Families Act) of 1997 states that a child in foster care 16 of the past 24 months must have an adoption plan started. And there really are very few exceptions.
Do you know the situation of the birthmother at this time? Has she actually met the requirements to reunify? Or is she asking for a reunification plan but still in the situation which led to the placement of her child?
The Judges have been very slow in many states to accept the terms of the ASFA of 1997 because there is still some level of discresion.
We were also told when we accepted our children as 'legal risk' on 1/10/03 that a new Federal Law had gone into effect on 1/1/03 stating that the birthmothers failure to appear at the determination hearing would result in an instant TPR. Our birthmother did not appear and her rights were terminated the very next day!
I will do some research and see if I can find exactly what law this was and how it is applied. We were told this new law was created just for these kinds of situations where the birthmother fails to show and then claims she was not properly advised. The only concern I have is that there is no record of her being properly notified. We were also told that a birthmother without a known address or one who could not be found would cause such action as it is her responsibilty to keep in contact with DHS if she is really interested in reunification--this however could be a state thing.
Try not to get too upset yet--lets get you as much of the legal understanding as possible. Are you working with your own attorney at this point or just with CPS?
You might get your own attorney at this point even if it does result in your needing to pay legal fees over $10,000.00 can be a tax credit. If there is any time to drag your own attorney in this might be the best.... keep in mind that at this point in time you are at the mercy of the system a well experienced, and educated attorney might be of great help. and TIP--look for one who has worked with the birthfamilies in the past as they may actually know more then those who have only worked with adoption finalizations... fight fire with fire!
Good luck and I will look and see what info I can dig up to support your case.
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Thank you for your input, even though she is not in reunification, the mother has completed quite a few services, WEAVE, Parenting Classes, Drug Court, etc. The reason why we are so confident in our case is that this is a Best Interests case, and the child will either stay with us or go immediately to his Bio mother. We have had this boy for almost two years, from birth. We have an excellent attorney, who is very familiar with the goings on of the county court system here ( Sacramento County ) Also, she is not in reunification, so the burden of proof is on her to convince this judge that she wont relapse and the child be sent back into the system after losing yet ANOTHER mother. The mother has been sober for 8 months after a 24 year history of consistent drug abuse. The problem lies in this new revelation of her not being properly notified. The judge has witheld rendering a decision on what to do until all attorneys have had the chance to find legal precedent either confirming or denying that too much time has passed, she had her chance, it DOESNT matter that the court didnt properly notify her, she and her attorney should have addressed this matter at her 12 month hearing 10 months ago. The judge himself is trying to find court cases addressing this. The reason I posted here is to see if anyone can help us with case histories, links to cases etc. We've come to far to lose my son on something so seemingly insignificent.
So even with the ASFA and all this time passage the judge wants to see some kind of confirmation given the lack of notice. I assume he wants only California law.
It should be pointed out that it is the Judges who have falied to support the ASFA and that the only reasons cases are extended seems to be judges who are not able/willing to accept the ASFA changes in law.
[url]http://forums.adoption.com/showthread.php?s=&threadid=133299[/url]
how long do we have to gather info?
We just ended the 3rd week of trial, and the mothers attorney is STILL calling witnesses. We have yet to address the court. The judge wants input from all attorneys on Monday. He himself is having clerks researching for him. The problem is that there are 5 attorneys involved in this case, 3 for mother (County Council, Siblings Attorney, Moms Attorney) 2 for us, (Babys Attorney, our Attorney) Mothers attorneys are EXTREMELY aggressive in there defense of mother, and are fighting for every scrap, as evidenced by this technicality they have uncovered. Thats part of the reason why I posted here, because I feel that I must do everything I can to keep my son, given the unbalance of attorneys.
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The judge ruled today. Since no one was able to find a court case law stating the remedy for the mother not getting notified of her reunification termination date at the 6 month hearing, he will assume that the matter will be waived and the trial remain as is, Best Interests of the Child. This is wonderful news and puts us that much closer to keeping our boy for good. We were really sweating there wondering if anyone would find anything going her way, and thank God no one did! Thanks for your concern, we appreciate it!