Court Cases on the Termination of Parental Rights: Child With FAS/FAE
In the interest of L.J.W.
252 P.3d 647 (Ct. App. Kan. 2011)
Child has special needs as a result of fetal alcohol syndrome. Child was removed from home because of concern parents could not meet those needs. Part of the child’s permanency plan was requiring the mother to complete a parenting assessment and follow its recommendations, to participate in family therapy with child and to find a doctor to rescreen the child for fetal alcohol syndrome. The mother did not fulfill these requirements or adjust her circumstances to meet her child’s special needs and thus her parental rights were terminated.
In re J.R v. D.R.
2010 Cal. App. Unpub. LEXIS 9496 (Ct. App. Cal. 2010)
Child has unspecified mental retardation and suspected fetal alcohol syndrome. Child’s father did not cooperate with CPS and so his parental rights were terminated.
In the Matter of the Welfare of the Children of K.H.
2009 Minn. App. Unpub. LEXIS 1023 (Ct. App. Minn. 2009)
Child has fetal alcohol syndrome and mother continues to have problems abusing alcohol. Mother left the 5-year-old child with FAS in car while she patronized a bar on a hot summer night. Her children were taken away and the case plan for mother involved sobering up and she refused to comply with the chemical-related aspects of the case plan.
Manuel O. v. Superior Court of Los Angeles County
2006 WL 862951 (Cal. Ct. App. 2006)
The court denied reunification services to the father of child with fetal alcohol syndrome because it found the father failed to protect his children from their mother’s alcohol abuse. His parental rights were terminated based on a California law that restricts reunification in cases where reunification of siblings of the child in question has been terminated for a specific reason, and nothing has been done by the parent to rectify the situation that led to that termination. The Juvenile court denied reunification services to the father with respect to these children on the basis of their mother’s alcohol abuse, but the grounds for the removal of the other siblings was domestic violence and not alcoholism. The order denying reunification services was reversed.
Milam v. Ark. Dept. of Human Servs.
2006 Ark. App. LEXIS 667 (Ct. App. Ark. 2006)
Child has fetal alcohol syndrome and several other problems. She had high needs due to eating and behavior problems. She was a very small, picky eater with no appetite and she had a temper, fits, and needed a lot of structure, consistency and routine. She should not be left unattended for long periods of time. Her parent had alcohol issues and parent’s rights were terminated because parent wouldn’t be able to care for a high needs child. Many services were provided to mother including budgeting assistance, homemaking, counseling referrals, substance abuse evaluation referrals, referrals for substance abuse treatment, transportation, fetal alcohol syndrome training, referral for psychological evaluation, training to learn child’s schedule, feeding and mealtime plans.
In re Halle T.
2004 WL 1788730 (Conn. Super. 2004)The court terminated the parental rights of father and mother of child with FAS who was neglected. Mother had lengthy criminal record, was currently incarcerated, had a history of substance and alcohol abuse and was disinterested in reunifying with her daughter. The father was interested in reunifying but also had history of alcohol abuse. The court found that he did not fully understand child’s medical condition or understand the complex physical and mental challenges associated with the child’s present and future care. He lacked the awareness and insight necessary to accommodate and meet her complex needs.
In re Alicia Z.,
784 N.E. 2d 240, 336 Ill. App. 3d 476, 271 Ill. Dec. 22 (App. Ct. 2002)
The appellate court declined to transfer guardianship of girl with FAS to her foster parents, but also declined to order that she be immediately placed in the custody of her biological father.
There was a dispute in this case about whether the child in question, Zayda, actually had FAS. A pediatrician testified that Zayda did have FAS, while a pediatric geneticist concluded that she had neither FAS, FAE, nor ARND. The latter physician testified that if there were evidence that the mother consumed alcohol during pregnancy, that might alter her diagnosis. The trial court had already concluded that the mother did drink during the pregnancy. The child had an IQ of 100; both experts agreed that that did not rule out a diagnosis of FAS. The trial court downplayed the importance of the disagreement about whether the child had FAS/FAE, since both experts agreed that Zayda needed continuing therapy sessions.
Zayda was first diagnosed with FAS in January 2000, when she was less than two. A court "ordered early intervention therapies, developmental classes, and occupational and speech therapy." She was later was "kicked out" of two day care centers for behaving badly, but her ability to extract and use learned information had improved.
The biological father had attended some of the child's therapy sessions, and understood and was attempting to help her deal with her problems.
"[He] used games, puzzles, and toys to teach her to remain focused on tasks. He also calmed Zayda when she became disoriented, frustrated, anxious, and afraid."
In the Interest of B.B. and P.B.
971 S.W. 2d 160 (Texas Ct. App. 1998)
In approving the termination of parental rights, the court noted that on factor which led it to do so was that "B.B.'s needs, now and in the future, require special care due to fetal alcohol syndrome." 971 S.W. 2d at 170. His mother still had a drinking problem.
In The Matter of the Children of Dixon
2003 WL 21152526 (Minn. App.)
The appellate court approved the termination of the father's parental rights to four children. Two of the children had FAE. (*4)
The trial court, in deciding to terminate Dixon's parental rights, emphasized that it would be in the best interests of the children to be raised by someone who understood and could respond to "their special needs", including the FAE. (*4).
At one time a case plan had been prepared for Dixon that included "engag[ing]in a support group for Fetal Alcohol syndrome and Fetal Alcohol Effects." (* 1). Apparently Dixon failed to do so.
In re Denice F.
658 A. 2d 1070 (Me. 1995)
The court approved the termination of parental rights with regard to two children. One child "may . . . suffer from fetal alcohol effects. She is definitely at risk for academic difficulties and requires structure, consistency and patience from any parent." 658 A. 2d at 1074.
The level of the needs of the two children was a factor in the decision to terminate parental rights. "[T]he mother will not be able to cope with the demands of her children even with the myriad of services which have been made available to her in the past." 658 A. 2d at 1074.
In the Interest of L.S.M.
236 Ga. App. 537, 512 S.E. 2d 397 (Ga. App. 1999)
County officials filed a petition regarding three children of James McIlveene. After a state court held that the children were deprived, the county agency sought to change the plan for the children to non-reunification. That request was granted and upheld on appeal.
One basis for the decision was that "the two youngest children also suffer from fetal alcohol effect and require special treatment that McIlveene will not be able to provide." 512 S.E. 2d at 398.
In the Interest of M.A.C.
49 S.W. 3d 923 (Tex. App. 2001)
The Texas Department of Protective and Regulatory Services sued to terminate the parental rights of the mother of M.A.C.. This action was brought while M.A.C. was a newborn, and was initially based on the fact that M.A.C. tested positive for cocaine at birth.
At trial the Department apparently contended that M.A.C. suffered from both FAS and "fetal cocaine syndrome" The mother requested that the court appoint an expert witness to determine the severity of these two syndromes. The court denied the request, and terminated the mother's parental rights on the ground that she "could not meet M.A.C.'s special needs." 49 S.W. 3d at 924.
The court of appeals reversed, holding that the mother was entitled to her own expert to evaluate the medical evidence.
"[T]he Department offered M.A.C.'s voluminous medical records, which [the mother's] counsel had admitted she could not adequately understand without expert assistance. The Department presented expert testimony . . . . The pediatrician, Dr. Richard Calvin, diagnosed M.A.C.'s syndromes by patient history . . . . According to Dr. Calvin, M.A.C.'s special needs require a custodian who understands his diagnosis and treatment. . . . The trial court abused its discretion by denying [the mother's] motion to permit her own expert to examine M.A.C."
49 S.W. 3d at 924.
Because there are a substantial number of cases in which termination of parental rights is based on the special needs of a child with FAS, the possibility that the parents in such a case would be entitled to their own medical experts has far reaching implications.
Mahaney v. Mahaney
51 P. 3d 776, 146 Wash. 2d 878 (2002)
The trial court awarded custody of Natasha and Jesse Mahaney to their paternal grandparents. Experts diagnosed both children as having FAS. 51 P. 3d at 790.
In awarding custody to the grandparents, the trial court concluded that "[t]he mother is not presently able to address the children's special medical and psychological needs." 51 P. 3d at 785.
In the Matter of the Custody and Parental Rights of M.M.
271 Mont. 52, 894 P. 2d 298 (1995)
The court approves termination of the father's parental rights with regard to M.M., who had been diagnosed with FAS. The decision rested largely on the failure of the father to comply with the terms of a treatment plan.
One element of the treatment plan was that the father "take classes on fetal alcohol syndrome." 894 P. 2d at 299. The treatment plan was prepared by the Lewis and Clark County Department of Family Protective Services.
In the Matter of Natasha Milland
146 Misc. 2d 1, 146 Misc. 2d 1 (Family Ct. N.Y. Cty. 1989)
Natasha was born with FAS. The court holds that the mother is guilty of neglect, even though the mother has never had custody of the child. Natasha was born with severe medical problems, and at all times was in the Neonatal Intensive Care Unit of the hospital. Her mother continued to drink, and the court concluded the mother would be unable to deal safely with the child's precarious physical condition.
The plaintiff agency (unidentified) offered expert testimony that FAS can be caused "either by episodic binge drinking or the regular intake of 2 or 3 ounces of alcohol per day." 146 Misc. 2d at 3. The mother testified she drank 4 ounces every other day while pregnant. 146 Misc. 2d at 6. [Is this 2, 3 or 4 ounces of beer, or whiskey, or the net ounces of pure alcohol in the drinks? The opinion is unclear.]
The mother had been warned that drinking might harm the baby and her own liver; her response was to cut down rather than to totally stop drinking. She explained: "I tried to stop drinking alcohol completely and it couldn't be done . . . . Because its hard . . . . Hard to stop drinking just like that." 146 Misc. 2d at 7.
The court reasoned that because of the severity of the child's medical condition, the child would be in danger if the mother drank. It then concluded that the fact she drank during the pregnancy was evidence she would do so later.
"The mother's prenatal misuse of alcohol and her child's condition showing such misuse continued throughout her pregnancy make it reasonable to infer continued use after birth."
146 Misc. 2d at 7. This assumption of continuity of alcohol use seems inconsistent with Morris v. Dept. of Social and Health Services, 2003 WL 220958 (Wash. App. Div. 1) and with some cases regarding ineffectiveness of counsel, which assert that knowledge that a mother drank (even excessively) at some point in her life is not sufficient to give counsel reason to believe she might have drunk during her pregnancy.
Adoption of Oliver
554 N.E. 2d 40, 28 Mass. App. Ct. 620 (Appeals Ct. 1990)
The appellate court affirmed a decision dispensing with the mother's consent to Oliver's adoption. This will permit the child's foster parents to adopt Oliver without the mother's agreement.
In reaching this conclusion, the court relied primarily on the special needs of a child, like Oliver, with FAS. The court also gave some weight to the mother's continued use of alcohol.
The description of the facts on which the diagnosis was based included the following:
"[Oliver has] some of the particular facial features of such children, retarded growth, and some neurological dysfunction. He is developmentally and mentally delayed. His psychological testing places him in the borderline retarded range."
(554 N.E. 2d at 43.)
The court described Oliver's special needs in the following passage:
"[I]t will be pivotal to Oliver's development that he live in an enriched environment with constant stimulation, by which the doctor meant that he must have sustained contact with persons willing to take an active interest in his everyday life and willing to encourage him to take responsibility for himself."
(554 N.E. 2d at 43).
Sherry R. v. State
74 P. 3d 896 (Alaska 2003)
Court approves termination of mother's parental rights. One ground was that the children had FAS, and that the mother "does not accept or understand her children's disabilities." 74 P. 3d at 903.
Snipes v. State Department of Human Resources
542 So. 2d 282 (Ala. Civ. App. 1989)
The court approves termination of the mother's parental rights. The child had been diagnosed with FAS and a number of other problems. The mother's inability to care for the special needs of the child was a major factor in the determination to terminate her parental rights. 542 So. 2d at 284.
In re the custody of T.M.
267 Mont. 75, 881 P. 2d 1333 (1994)
The court approves termination of the father's parental rights with regard to T.M. T.M. had been diagnosed with FAS. "As a result, he requires a structured environment and constant parental supervision." 267 Mont. at 76. The diagnosis was by a Dr. Susan Lewin, a geneticist at Shodair Hospital. 267 Mont. at 79.
In deciding to approve termination of parental rights, the court emphasized that the father was unable to meet the special needs created by FAS. 267 Mont. at 79.
Appeal of U.S.W.
541 A. 2d 625 (D.C.Ct.App. 1998)
Appellate court affirms the termination of father's parental rights. The court holds that the father would be unable to meet the special needs of the child caused by FAS and "fetal hydantoin syndrome." 541 A. 2d at 626-27.
The opinion notes that the child's foster parents appear better able to meet the child's needs.
Expert testimony asserted that the child's disabilities will make it harder to find adoptive parents. 541 A. 2d at 626.
In re Zaire T.
2001 WL 360046 (Conn. Super.)
Court orders the termination of the parental rights of both the mother and father of Zaire. A central ground for the decision is the court's finding that the parents will be unable to meet the special needs of the child, who may have FAS. 2001 WL 360046 at * 6 (at birth child had "signs of fetal alcohol syndrome"), *15 (child "shows the possibility of fetal alcohol syndrome.")