November 01, 2012

Jurisdiction Based on Child Living in U.S. Superseded Foreign Adoption Order

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

In re E.E.B.W., 2012 WL 4902815 (Ga. Ct. App.).

Juvenile court had home state jurisdiction under the Uniform Child Custody and Jurisdiction Enforcement Act (UCCJEA) to take custody of child and terminate parental rights based on her residing in U.S. Earlier foreign adoption order was not an ‘original’ custody order as UCCJEA does not cover adoption.

Child was born in Zambia and orphaned at a young age. She had extensive facial deformities from a tumor and her orphanage sought corrective surgery. She was sponsored by an international charity to come to Georgia to have surgery. She had a series of surgeries beginning in 2005.

While she was in Georgia she lived with a host family set up through the charity. During that time the couple that operated the orphanage in Zambia adopted her without her notice or knowledge. Upon learning of the adoption, the child reported that the couple had sexually abused her and allowed others to do so.

After an investigation, the Georgia child welfare agency filed a dependency petition. The couple that ran the orphanage in Zambia appeared at the deprivation hearing and denied the allegations. The court found the child dependent and the state was awarded legal custody but she remained with the host family.

The adoptive couple did not complete a case plan, support the child, or maintain contact with the agency for several years before the termination proceedings were initiated. The court found termination grounds existed and termination was in the child’s best interests.

The case was appealed to the Georgia Court of Appeal. The Court of Appeal noted that the UCCJEA is meant to resolve disputes among jurisdictions regarding a wide range of child custody proceedings. It covers termination proceedings, but not adoption proceedings. A foreign nation is treated in the same way as a sister state and a foreign custody decision should be enforced if made in substantial conformity with the UCCJEA standards.

The UCCJEA states that home state jurisdiction is established when a child lives with a parent or someone acting as a parent for at least six consecutive months before a proceeding is filed. The Georgia Court of Appeal held that because the child lived in Georgia for over six months before the deprivation case began, Georgia had home state jurisdiction for the dependency case, which was not appealed. Further, the earlier adoption order was not an original custody order for UCCJEA purposes because adoption was not covered by the Act. The home state jurisdiction continued to the time of termination because the child remained with the host family who was acting in the role of parents.

Based on these considerations, the Georgia Court of Appeal affirmed the termination of the adoptive parents’ rights.