Pope Francis’s Statement Endorsing Same-Sex Civil Unions Undermines the Moral Legitimacy and Legal Arguments in Fulton v. City of Philadelphia

DAVID S. KEMP, CHARLES E. BINKLEY

David S. Kemp, a professor at Berkeley Law, and Charles E. Binkley, MD, the director of bioethics at Santa Clara University’s Markkula Center for Applied Ethics, consider the implications of Pope Francis’s recently revealed statement endorsing same-sex civil unions as they pertain to a case currently before the U.S. Supreme Court. Kemp and Binkley argue that the Pope’s statement undermines the moral legitimacy of the Catholic organization’s position and casts a shadow on the premise of its legal arguments.

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Stigma and the Oral Argument in Fulton v. City of Philadelphia

LESLIE C. GRIFFIN

UNLV Boyd School of Law professor Leslie C. Griffin explains why stigma is a central concept that came up during oral argument before the Supreme Court in Fulton v. City of Philadelphia. Griffin points out that some religions have long supported racial discrimination, citing their religious texts, but courts prohibited such discrimination, even by religious entities. Griffin argues that just as religious organizations should not enjoy religious freedom to stigmatize people of color, so they should not be able to discriminate—and thus stigmatize—people based on sexual orientation.

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Alaska Dept. Health & Soc. Serv, Ofc. of Child Serv. v. Zander & Kelly B. (Foster Parents)

Court: Alaska Supreme Court

Docket: S-17399

Opinion Date: October 30, 2020

Judge: Peter J. Maassen

Areas of Law: Family Law

The Alaska Office of Children’s Services (OCS) took emergency custody of a three-year-old child and placed him with non-relative foster parents. The child lived with the foster parents for over a year when OCS informed them of its intent to place the child with his grandmother. The superior court allowed the foster parents to intervene in child-in-need-of-aid proceedings (CINA) to contest the placement decision. After a hearing, the court stayed the placement, concluding OCS abused its discretion in deciding the move the child with his grandmother. OCS appealed, arguing the superior court erred in staying its decision. After review, the Alaska Supreme Court concluded the superior court did not abuse its discretion by permitting the foster parents to intervene. Furthermore, the Supreme Court determined the trial court's factual findings were not clearly erroneous, and the court did not err when it decided OCS abused its discretion in its placement decision. Judgment was therefore affirmed.

In re Christopher L.

Court: California Courts of Appeal

Docket: B305225(Second Appellate District)

Opinion Date: November 2, 2020

Judge: Frances Rothschild

Areas of Law: Family Law

Father appealed the termination of his parental rights at a Welfare and Institutions Code section 366.26 permanency planning hearing. Although the Court of Appeal was troubled by the errors father identifies in connection with the jurisdiction/disposition hearing, the court concluded that they would not have affected the ultimate outcome of the dependency proceedings and affirmed the trial court's order regarding son. In this case, the errors identified were not prejudicial under the applicable harmless error analysis articulated in People v. Watson (1956) 46 Cal.2d 818. Nor are they prejudicial under the more stringent "harmless beyond a reasonable doubt" standard articulated in Chapman v. California (1967) 386 U.S. 18, 24. Under the harmless standard analysis, the record clearly establishes that, had father appeared and/or been represented by counsel at the jurisdiction/disposition hearing, father would not have obtained a more favorable result. The court also denied father's motion to apply the doctrine of constructive filing to extend father's appeal regarding daughter. The court held that, given its conclusion that father's arguments regarding son do not warrant reversal, permitting father to pursue them with respect to daughter would serve no purpose.

Foisie v. Foisie

Court: Connecticut Supreme Court

Docket: SC20384

Opinion Date: November 10, 2020

Judge: D’Auria

Areas of Law: Family Law

The Supreme Court reversed in part the judgment of the trial court denying Plaintiff's motion to substitute the coexecutors of the estate of Defendant, her former husband, in his place, holding that the trial court erred in denying Plaintiff's motion to substitute as defendants the coexecutors of Defendant's estate. At issue was whether, under Conn. Gen. Stat. 52-599, a party to a dissolution of marriage action may substitute the executor of the estate of a deceased party in the place of the decedent when the pending civil proceeding seeks to open a judgment of dissolution on the basis of financial fraud. The trial court in this case determined that granting Plaintiff's motion to open would reinstate the parties' marriage and the reinstated marriage automatically would be dissolved due to Defendant's death, and therefore, the opened action for dissolution would abate, thereby prohibiting substitution under section 52-599(b). The Supreme Court disagreed, holding that because Plaintiff sought the opening of the dissolution judgment for the limited purpose of reconsidering the financial orders only, the granting of the motion would not have reinstated the parties' marriage, and Defendant's death did not defeat and render useless the underlying civil proceeding.

L.R.O. v. N.D.O.

Court: Supreme Court of Hawaii

Docket: SCWC-19-0000446

Opinion Date: November 5, 2020

Judge: Mark E. Recktenwald

Areas of Law: Family Law

In this divorce proceeding, the Supreme Court adopted the California Supreme Court's test for voluntariness in premarital agreements (PMA) under the Uniform Premarital Agreement Act (UPAA) and held that the family court did not err in enforcing the PMA in this case and that Wife's other asserted points of error were meritless. During the parties' divorce proceeding, Wife argued that she involuntarily executed the PMA prior to her marriage to Husband. The family court rejected Wife's argument and enforced the PMA. The Supreme Court affirmed the judgment of the intermediate court of appeals and the family court, holding that the family court did not err by (1) considering the custody evaluator's report in awarding full physical custody of the parties' minor child to Husband; (2) finding that the PMA was enforceable; and (3) failing to find that Husband abused the temporary restraining order process to gain advantage in the custody dispute.

Commonwealth, Cabinet For Health & Family Services v. K.S.

Court: Kentucky Supreme Court

Docket: 2019-SC-0692-DGE

Opinion Date: October 29, 2020

Judge: Lambert

Areas of Law: Constitutional Law, Family Law, Government & Administrative Law

In this dependency, abuse, and neglect proceeding, the Supreme Court held that Ky. Rev. Stat. 620.100(1)(b) does not entitle an indigent parent to state-funded expert assistance in dependency, neglect, and abuse (DNA) cases but that, under certain circumstances, parents are entitled to reasonably necessary expert assistance under the due process provisions of the Kentucky and United States Constitutions. The Cabinet for Health and Family Services filed DNA petitions on behalf of Parents' children based on risk of harm. The family court determined that Mother and Father were indigent, but when counsel for both parties requested funds to hire a medical expert the court denied the request. The court then found that Parents' three children were neglected or abused. The court of appeals reversed, concluding that section 620.100(1)(b) grants indigent parents a right to funding for reasonably necessary expert assistance. The Supreme Court reversed insofar as the court's holding relied on Ky. Rev. Stat. 620.100 but affirmed the court's reversal of the family court on constitutional grounds, holding that whether due process requires a court-appointed expert is best left to the judgment of the trial court. The Court remanded the case for new DNA proceedings with instructions for the family court to analyze the need for expert assistance prior to adjudication.

In re A.M.

Court: Supreme Court of Ohio

Citation: 2020-Ohio-5102

Opinion Date: November 3, 2020

Judge: Judith L. French

Areas of Law: Family Law

The Supreme Court affirmed the judgment of the court of appeals affirming the judgment of the court of common pleas, juvenile division, which granted permanent custody of A.M. to the Hamilton County Department of Job and Family Services (Department), holding that the juvenile court complied with Ohio Rev. Code 2151.414(D)(1). At issue was the statutory requirement that juvenile courts consider the factors set forth in Ohio Rev. Code 2151.414(D)(1) for determining a child's best interest before granting a motion filed by a private child-placing agency or a public children-services agency for permanent custody of that child. The magistrate in this case granted the Department permanent custody of A.M., finding that A.M. should not be placed with either parent and that an award of permanent custody to the Department was in A.M.'s best interest. The juvenile court adopted the magistrate's decision. The court of appeals affirmed. The Supreme Court affirmed, holding (1) section 2151.414(D)(1) requires a juvenile court to consider all relevant factors in determining the best interest of a child in a permanent custody case; and (2) the record demonstrated that the magistrate and the juvenile court considered the statutory factors.

Evens v. Evens

Court: South Dakota Supreme Court

Citation: 2020 S.D. 62

Opinion Date: November 4, 2020

Judge: Salter

Areas of Law: Family Law

The Supreme Court affirmed the circuit court's judgment and decree of divorce entered on the grounds of extreme cruelty, as well as the court's determinations regarding child custody, property division, child support, and attorney fees and costs, holding that the court did not err or abuse its discretion. Specifically, the Supreme Court held (1) the circuit court did not commit clear error in granting Husband's request for a divorce on the grounds of extreme cruelty; (2) the circuit court did not abuse its discretion in its child custody determination, marital property division, child support calculation, or award of attorney fees; and (3) based on Wife's refusal to comply with the court's judgment and decree of divorce, the court did not commit clear error when it found Wife in contempt of court.

In re A.M.

Court: Supreme Court of Appeals of West Virginia

Docket: 19-0492

Opinion Date: November 5, 2020

Judge: Jenkins

Areas of Law: Family Law

The Supreme Court reversed the circuit court's May 15, 2019 amended adjudicatory order in the underlying abuse and neglect case, holding that the circuit court erred by refusing to find both that Father had committed sexual abuse of A.M. and that Mother was an abusive and/or neglectful parent because she had failed to protect both of her children from such abuse. By the 2019 order, the circuit court determined Father to be an abusive and/or neglectful parent of his two children and concluded that Mother had committed no abuse and/or neglect of the children. On appeal, the children's guardian ad litem argued that the circuit court erred by failing also to adjudicate Father of sexual abuse of the oldest child, A.M. and by not finding Mother to be an abusive and/or neglectful parent based upon her failure to protect the children from such sexual abuse. The Supreme Court agreed and reversed the circuit court's 2019 amended adjudicatory order and to enter a new amended adjudicatory order finding that Father sexually abused A.M. and that Mother was an abusive and/or neglectful parent.

In re M.M.

Court: Supreme Court of Appeals of West Virginia

Docket: 19-0926

Opinion Date: October 30, 2020

Judge: Hutchison

Areas of Law: Family Law

The Supreme Court reversed the disposition order of the circuit court that terminated Mother's parental rights to her children, holding that the circuit court erred in concluding that Mother failed to comply with the terms of her improvement period and in terminating Mother's parental rights on the same grounds. On appeal, Mother argued that the circuit court erred in terminating her parental rights upon finding that she failed successfully to complete the terms of her post-adjudicatory improvement period and that there was no likelihood that the circumstances of abuse and neglect could be remedied in the near future. Specifically, Mother argued that the Department of Health and Human Resources' act of stopping payment for Mother's substance abuse treatments that had been approved for her use as part of her improvement period and family case plan violated the Department's obligations to follow the approved case plan and to make efforts to preserve the family. The Supreme Court agreed, holding that the circuit court erred in concluding that Mother had not complied with her improvement period, and it was clear error for the circuit court to have terminated Mother's parental rights on this basis.