CASELAW INDEX
http://www.geocities.com/family_rights_wv
index of caselaws
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caselaws/
TERMINATION OF PARENTAL RIGHTS
http://www.geocities.com/family_rights_wv/caselaws/In_re_Tekela_et_al.html
Case where biological mother's appeal becomes moot and her children
are adopted because she failed to file a Motion for Stay of Proceedings when
her parental rights were terminated. Stays of proceedings are granted
at the discretion of the court, however, the supreme court of IL held
that she should have filed the motion anyway "...While Wanda enjoyed a
right to appeal the termination order, it remained incumbent upon her to
protect that right and to take necessary steps to preserve the fruits of
her appeal. See People v. Crane, 195 Ill. 2d 42, 58 (2001) (stating that
a defendant is not completely absolved from all responsibility of asserting
his or her fundamental rights). The United States Supreme Court has similarly
acknowledged the importance of a party protecting their own interests. For
example, that Court has repeatedly held that, " '[n]o procedural principle
is more familiar *** than that a constitutional right may be forfeited in
criminal as well as civil cases by the failure to make timely assertion of
the right before a tribunal having jurisdiction to determine it.' " Coleman
v. Thompson, 501 U.S. 722, 751, 115 L. Ed. 2d 640, 670, 111 S. Ct. 2546,
2565 (1991), quoting Yakus v. United States, 321 U.S. 414, 444, 88 L. Ed.
834, 859, 64 S. Ct. 660, 677 (1944)."
In re Tekela et al is an IL Supreme Court Case which shows the need to
file a MOTION FOR STAY OF PROCEEDINGS when parental rights are terminated
. CPS claimed mother was unfit due to "mental illness", mother claimed disputed
issues of material fact existed. IL Supreme court holds that biological
mother should have filed a Motion for Stay of Proceedings preventing the
enforcement of the order terminating her parental rights, therefore the state
had authority to proceed with the adoptions of her children and her appeal
becomes moot.
Chief Justice Harrison dissents stating the State is starting down a
"dangerous course". Chief Justice Harrison points out that the mother did
not know what was going on (the adoption), however, the state did and states
"....We cannot allow rights as precious and fundamental as those at stake
here to be defeated by State-orchestrated deceit."
Read the full text version here
http://www.geocities.com/family_rights_wv/caselaws/In_re_Tekela_et_al.html
DOMESTIC VIOLENCE RELATED
TO DIVORCE, CUSTODY, & PARENTAL RIGHTS
http://www.wvu.edu/~law/dv/custody1.html
Ledsome
v. Ledsome,
171 W.Va. 602, 301 S.E.2d 475 (1983).{Court recognized that domestic
abuse can potentially affect a child's welfare.}
Nancy
Viola R. v. Randolph W.,
177 W.Va. 710, 356 S.E.2d 464 (1987). {Spousal abuse is a factor
to be considered in determining parental fitness for child custody.}
WVDHHS
v. Tammy B.,
180 W.Va. 295, 376 S.E.2d 309 (1988). Per Curiam.{Cases
in which chldren had been exposed to domestic violence, sexual
acts, and mother had meaningful improvement period, presented
compelling circumstances justifying denial of additional improvement
period prior to termination of parental rights.}
In
the Interest of Betty J.W.,
179 W.Va. 605, 371 S.E.2d 326 (1988). {Agency filed petition to
terminate mother's parental rights which was granted. Court held
mother should have been granted an improvement period without
the custody of her children before termination of parental rights.}
Kenneth B. v. Elmer
Jimmy S., 184 W.Va. 49, 399 S.E.2d 192 (1990). Per
Curiam.{Reiterated Viola, murder in the 2nd degree
& no evidence of child abuse still required termination of
parental right.}
Lufft
v. Lufft,
188 W.Va. 339, 424 S.E. 2d 266 (1992). {Evidence that father battered
mother in front of child and continuing allegations of physical
violence against father's current girlfriend required adjustment
of visitation order.}
Henry
v. Johnson, 192 W.Va. 82, 450 S.E.2d 779 (1994).
{Family Law Master should take domestic violence into account
since children often experience and/or witness violence.}
Feaster
v. Feaster,
192 W.Va. 337, 452 S.E.2d 428 (1994) Per Curiam. {In divorce
proceedings, courts should consider allegations of domestic violence
when making an award of temporary custody of parties' child. Additionally,
courts should consider allegations of domestic violence when making
an award of temporary custody.}
WVDHHS
v. Billy Lee C., 199 W.Va. 541, 485 S.E.2d 710 (1997).
Per Curiam.{Regular use of alcohol and marijuana and fact
that father engaged in domestic violence against mother were relevant
considerations with regard to welfare of children in the home.}
Mary
Ann McG. v. William R.P.,
499 S.E.2d 313 (1997). Per Curiam.{Primarily Concerns visitation
rights}
Patrick
D. v. Diane D.,
508 S.E.2d 375 (1998) Per Curiam. {Reiterates the cases
above}
WV SUPREME COURT EXPLANATION OF "PER CURIUM"
http://www.wvu.edu/~law/dv/Cases/custody/MaryAnn.html
Mary Ann McG. v. William R.P., 499 S.E.2d 313 (1997) Per Curiam
MARY ANN McG. Appellant, v. WILLIAM R. P., Appellee.
No. 24000.
Supreme Court of Appeals of West Virginia.
Submitted Oct. 8, 1997.
Decided Dec. 8, 1997.
PER CURIAM: [FN1]
FN1.
We point out that a per curiam opinion is not legal precedent. See Lieving v. Hadley, 188 W.Va. 197, 201 n. 4, 423 S.E.2d 600, 604 n. 4 (1992) ("Per curiam opinions ... are used to decide only the specific case before the Court; everything in a per curiam opinion beyond the syllabus point is merely obiter dicta.... Other courts, such as many of the United States Circuit Courts of Appeals, have gone to non-published (not-to-be- cited) opinions to deal with similar cases. We do not have such a specific practice, but instead use published per curiam opinions. However, if rules of law or accepted ways of doing things are to be changed, then this Court will do so in a signed opinion, not a per curiam opinion.").
http://www.wvu.edu/~law/dv/Cases/custody/MaryAnn.html
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