The Twenty-Sixth Amendment and the Real Rigging of Georgia’s Election

VIKRAM DAVID AMAR

Illinois law dean Vikram David Amar explains why Georgia’s law allowing persons 75 years and older to get absentee ballots for all elections in an election cycle with a single request, while requiring younger voters to request absentee ballots separately for each election, is a clear violation of the Twenty-Sixth Amendment. Dean Amar acknowledges that timing may prevent this age discrimination from being redressed in 2020, but he calls upon legislatures and courts to understand the meaning of this amendment and prevent such invidious disparate treatment of voters in future years.

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COVID Comes to Federal Death Row—It Is Time to Stop the Madness

AUSTIN SARAT

Austin Sarat—Associate Provost and Associate Dean of the Faculty and William Nelson Cromwell Professor of Jurisprudence & Political Science at Amherst College—explains the enhanced risk of COVID-19 infection in the federal death row in Terre Haute, not only among inmates but among those necessary to carry out executions. Professor Sarat calls upon the Trump administration and other officials to focus on saving, rather than taking, lives inside and outside prison.

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Edna L. v. Dept. of Health & Social Services (Office of Children's Services)

Court: Alaska Supreme Court

Docket: S-17485

Opinion Date: December 24, 2020

Judge: Peter J. Maassen

Areas of Law: Family Law

A mother and father appealed the termination of their parental rights after proceedings at the Families with Infants and Toddlers Court (FIT Court). They argued their rights were violated when the FIT Court’s “rigid, non-fact driven,” 12-month timeline governed the progression of the Child in Need of Aid (CINA) cases of their two children. After review of the FIT Court record, the Alaska Supreme Court concluded it was error to adhere to a preset timeline rather than making an individualized assessment of whether the parents had a reasonable time to remedy based on the facts of their children’s cases, as required by statute. Furthermore, the Court concluded the parents did not knowingly and voluntarily waive that statutory requirement.

Philips v. Bremner Philips

Court: Alaska Supreme Court

Docket: S-17202

Opinion Date: December 18, 2020

Judge: Peter J. Maassen

Areas of Law: Family Law

A divorcing couple had a community property trust holding title to two rental properties: a fourplex and a mobile home park. The husband had owned these properties before marriage. The superior court divided the marital estate equally, awarding the rental properties to the husband and a large equalization payment to the wife. Both parties appealed. The husband argued the superior court erred when it found that a bank account in the names of the husband and the mobile home park was marital. The wife argued the court erred in its interpretation of the Alaska Community Property Act when it held that income and appreciation from the rental properties in the community property trust remained the husband’s separate property; she also argued the court clearly erred in some findings of fact and abused its discretion when it failed to invade the husband’s separate property in order to reach an equitable division. After review, the Alaska Supreme Court concluded the superior court did not err in its interpretation of the relevant statutes, did not clearly err in its findings of fact, and did not abuse its discretion when dividing the marital estate.

Conservatorship of Navarrete

Court: California Courts of Appeal

Docket: E070210(Fourth Appellate District)

Opinion Date: December 21, 2020

Judge: Slough

Areas of Law: Family Law

Anna Navarrete is the 33-year-old adult child of Maria Navarrete (mother) and Rodolfo Navarrete, Sr. (father), who had cerebral palsy and a speech disorder which limit her ability to answer questions and express her needs and desires. Mother has been her primary caregiver. Mother and father split up during the dispute that lead to this appeal. Mother filed a petition asking to be appointed Navarrete’s probate conservator. Navarrete’s father and older brother objected to mother’s petition, and her brother filed a competing petition asking to be appointed instead. Mother and father also sought domestic violence restraining orders against each other. An accusation was lodged against the father, that he sexually assaulted and raped Navarrette. At trial, Navarrete’s therapist, mother, and younger brother, Adrian Navarrete (Adrian), said Navarrete told them her father sexually assaulted and raped her and she fears her father. Father testified and denied the accusations. The trial court interviewed Navarrete, but concluded she wasn’t a competent witness before eliciting any testimony from her about the assaults. In the end, though the court expressed uncertainty about what had happened, it found mother hadn’t proven the accusations of sexual assault by a preponderance of the evidence, but also found Navarrete had genuine fear of her father and didn’t want to see him. The trial court appointed mother as Navarrete’s probate conservator and denied the brother’s petition. Later, after further hearings, the trial court granted father visitation and ordered Navarrete to attend joint counseling sessions with her father. The court concluded, over the objection of Navarrete, her conservator, and her attorney, that such visits were in her best interest because it would allow reconciliation in the event the accusations of sexual assault weren’t true. The visitation order was the only part of the case challenged on appeal. The Court of Appeal held trial court didi not have the authority to order Navarrete to attend joint counseling sessions with her father, and therefore reversed the order.

In re A.G.

Court: California Courts of Appeal

Docket: H047951(Sixth Appellate District)

Opinion Date: December 18, 2020

Judge: Bamattre-Makoukian

Areas of Law: Family Law, Juvenile Law

Based on a Welfare and Institutions Code section 300(b)(1) petition, A.G, then four years old, was placed into protective custody after his mother, S.B., twice drove a car in which A.G. was a passenger while she was under the influence. Mother's reunification services were terminated at the 12-month review hearing. At a selection and implementation hearing, S.G. requested a contested hearing on statutory exceptions to adoption and the termination of parental rights: the beneficial parental relationship and the sibling relationship. The court found her offer of proof insufficient, denied her request for a contested hearing, found the minor adoptable, and terminated S.G.'s parental rights. The court of appeal reversed the denial of a contested hearing. The offer of proof must address two components of the parental relationship exception: the parent’s regular contact with the child and the existence of a beneficial parent-child relationship. It need not address whether the existence of that relationship constitutes a compelling reason for determining that termination would be detrimental to the child. S.G.'s offer of proof was adequate, addressing both her regular contact with A.G. and the existence of a beneficial parent-child relationship. Because the termination of parental rights is at stake, the court, particularly where the parent’s regular contact with the child is not in dispute, should exercise caution before denying a contested hearing and should construe the parent’s offer of proof liberally.

Bromund v. Bromund

Court: Idaho Supreme Court - Civil

Docket: 47602

Opinion Date: December 22, 2020

Judge: Roger S. Burdick

Areas of Law: Civil Procedure, Family Law

At issue before the Idaho Supreme Court in this matter was what portion of a military retirement benefit was subject to division following divorce. Specifically, the Court was asked to decide whether a 2017 amendment to the federal statutory scheme governing military retirement applied to the division of a benefit entered as part of a divorce decree in 2008 but not calculated until the husband’s retirement in 2018. The Supreme Court determined a 2017 amendment to 10 U.S.C. 1408 did not apply retroactively to alter the division of the military benefit at issue here. Furthermore, the district court did not err in concluding that the magistrate court’s mischaracterization of the 2008 divorce decree was harmless error because it did not impact the outcome of litigation.

Yanes-Mirabal v. Badasay

Court: Supreme Court of Indiana

Docket: 20S-JP-554

Opinion Date: December 18, 2020

Judge: Steven H. David

Areas of Law: Family Law

The Supreme Court remanded this custody matter for further proceedings, holding that the trial court abused its discretion by conflating Mother's contempt of court with the best interest of the child. Father filed a petition to request DNA testing, establish paternity, physical custody, parenting time and child support. Later, the trial court found Mother in contempt for relocating the child out of Indiana and for denying Father parenting time. The court then ordered that Father should have sole legal and physical custody of the child. The Supreme Court reversed and remanded the matter for additional proceedings, holding that Mother's alleged contempt was not so severe as to remove the child from her care.

In re J.H.

Court: Iowa Supreme Court

Docket: 20-0854

Opinion Date: December 18, 2020

Judge: Christensen

Areas of Law: Family Law

The Supreme Court vacated the decision of the court of appeals and affirmed the order of the juvenile court terminating Father's parental rights, holding that the State proved the grounds for termination of Father's parental rights and that termination was in the child's best interests. Father had a history of involvement with the Iowa Department of Human Services due to his issues with domestic violence, substance abuse, cognitive functioning, and mental health, leading to the termination of his parental rights to ten other children. In this case, Father's issues led to the removal of another child upon birth. When the child developed serious health issues, Father showed no interest in the child's medical care and failed to gain understanding of how to care for the child's medical needs. Ultimately, the juvenile court terminated Father's parental rights. The Supreme Court affirmed, holding that Father remained incapable of safely caring for the child, and there was no indication that his parenting abilities would adequately improve in the foreseeable future.

In re N.C.

Court: Iowa Supreme Court

Docket: 20-0833

Opinion Date: December 18, 2020

Judge: McDonald

Areas of Law: Family Law

The Supreme Court affirmed the decision of the court of appeals affirming the juvenile court's dismissal of the State's petition to adjudicate a child, N.C., in need of assistance pursuant to Iowa Code 232.2(6)(b), (d), and (p), but revering the dismissal on the ground set forth in (d), holding that the State satisfied its burden of proof to adjudicate N.C. a child in need of assistance pursuant to Iowa Code 232.2(6)(d). Section 232.2(6)(d) defines a child in need of assistance as a child who "has been, or is imminently likely to be, sexually abused by the child's parent, guardian, custodian, or other member of the household in which the child resides." The Supreme Court held that N.C.'s report of sexual abuse in this case was credible and that the State satisfied its burden of proof.

Normandin v. Normandin

Court: Kentucky Supreme Court

Docket: 2018-SC-0451-DG

Opinion Date: December 17, 2020

Judge: Michelle M. Keller

Areas of Law: Family Law

The Supreme Court affirmed in part and reversed in part the judgment of the court of appeals affirming the order of the family court in this divorce action, holding that the family court miscalculated the combined monthly income for purposes of setting child support. On appeal, Appellant challenged the family court's classification and division of marital property, calculation of maintenance, and calculation of child support. The court of appeals affirmed the family court's decision in its entirety. The Supreme Court reversed in part and remanded the case for further proceedings, holding (1) the family court erred in classifying Appellee's restricted stock units and thus miscalculated the combined monthly income in setting child support; and (2) the family court did not abuse its discretion by not considering Appellee's income as an independent factor for increasing directed maintenance or computing Appellant's reasonable needs.

Doe v. Hills-Pettitt

Court: Maine Supreme Judicial Court

Citation: 2020 ME 140

Opinion Date: December 22, 2020

Judge: Humphrey

Areas of Law: Civil Rights, Family Law

The Supreme Judicial Court vacated the judgment of the district court dismissing with prejudice a complaint for protection from abuse that Plaintiff brought on behalf of her three minor children against the children's father (Father), holding that due process did not require that the court dismiss this matter with prejudice. After Plaintiff filed her complaint for protection from abuse on behalf of her children, Father was arrested. Father's bail conditions prohibited contact between Father and the children. Plaintiff moved to dismiss the complaint without prejudice given that Father's bail conditions protected the children. The court denied Plaintiff's motion and dismissed the case with prejudice, concluding that it did not have the discretion to grant Plaintiff's motion. The Supreme Judicial Court vacated the judgment, holding that the court erred as a matter of law when it determined that due process and Me. Rev. Stat. 4006(1) required it to either hold the hearing as scheduled or dismiss the complaint with prejudice and that, pursuant to Me. R. Civ. P. 41(a)(2), the court had the authority and discretion to dismiss Plaintiff's complaint without prejudice.

Lovell v. Lovell

Court: Maine Supreme Judicial Court

Citation: 2020 ME 139

Opinion Date: December 22, 2020

Judge: Connors

Areas of Law: Family Law

The Supreme Judicial Court affirmed the divorce judgment entered by the district court, holding that district court did not err in its property distribution between the parties. On appeal, Dorothy Lovell argued (1) the district court erred when it determined that Paul Lovell was not judicially estopped from arguing that a retirement account was marital property, despite a contrary provision in a previous divorce judgment; (2) she received insufficient notice of the district court's intention to reevaluation the distribution of the entire marital estate; and (3) the district court committed obvious error when it determined that part of the retirement account was marital property. The Supreme Judicial Court affirmed, holding (1) the doctrine of judicial estoppel did not apply here; (2) Dorothy's due process argument was waived; and (3) the district court did not err in its property distribution.

Carroll v. Gould

Court: Nebraska Supreme Court

Citation: 308 Neb. 12

Opinion Date: December 18, 2020

Judge: Freudenberg

Areas of Law: Family Law

The Supreme Court reversed the order of the district court denying Grandfather's intervention, as a person standing in loco parentis, in a custody proceeding brought by Mother against Father, holding that the district court erred in ruling that Grandfather did not stand in loco parentis and in denying the complaint in intervention. The district court concluded that any in loco parentis status had been extinguished by virtue of a child support order issued more than one year earlier, as well as through temporary custody orders placing the child with a parent. The Supreme Court reversed and remanded the case, holding (1) rather than making factual findings, the district court should have determined the matter of intervention on the pleadings; and (2) based on the allegations of the pleadings, Grandfather had a right to intervene.

In re A.L.L.

Court: North Carolina Supreme Court

Docket: 319A19

Opinion Date: December 18, 2020

Judge: Earls

Areas of Law: Family Law

The Supreme Court reversed the order of the district court terminating Mother's parental rights to her minor daughter, holding that Petitioners did not prove by clear, cogent, and convincing evidence that grounds existed to terminate Mother's parental rights and that the requirements of N.C. Gen. Stat. 7B-1111(a)(6) and (7) were not met in this case. The trial court ultimately appointed Petitioners as the child's legal permanent guardians pursuant to N.C. Gen. Stat. 7B-600. Petitioners filed a petition seeking to terminate Mother's parental rights in order to adopt the child. The district court terminated Mother's parental rights pursuant to N.C. Gen. Stat. 7B-1111(a)(6) and (7). The Supreme Court reversed, holding that the requirements of section 7B-1111(a)(6) were not met because the child resided with legal permanent guardians and that the record lacked any evidence supporting a conclusion that Mother acted willfully within the meaning of section 7B-1111(a)(7).

In re B.L.H.

Court: North Carolina Supreme Court

Docket: 276A19

Opinion Date: December 18, 2020

Judge: Robin E. Hudson

Areas of Law: Family Law

The Supreme Court affirmed the order of the trial court terminating Father's parental rights to Beth, holding that the trial court did not err. After a termination hearing, the trial court terminated Father's parental rights, concluding that grounds existed for termination under N.C. Gen. Stat. 7B-1111(a)(1), (2), (5), and (7). The written termination order did not explicitly state that the grounds to terminate Father's parental rights were proved by clear, cogent, and convincing evidence. The Supreme Court affirmed, holding that, where the trial court stated the statutorily-mandated standard of proof in open court and there was nothing in the order indicating the trial court applied the incorrect standard of proof, the trial court did not reversibly err by failing to explicitly state the correct standard of proof in the written termination order.

In re J.J.H.

Court: North Carolina Supreme Court

Docket: 430A19

Opinion Date: December 18, 2020

Judge: Ervin

Areas of Law: Family Law

The Supreme Court affirmed the trial court's order terminating Mother's parental rights, holding that the trial court did not err in determining that Mother's parental rights in the children were subject to termination on the basis of neglect pursuant to N.C. Gen. Stat. 7B-1111(a)(1) and that termination of Mother's parental rights would be in the children's best interests. The trial court concluded that Mother's parental rights were subject to termination on the basis of neglect and that termination of Mother's parental rights would be in the children's best interests. The Supreme Court affirmed, holding (1) the trial court's ultimate findings that there was current ongoing neglect and a likelihood of repetition of neglect were supported by the record evidence; and (2) the trial court's evidentiary and ultimate findings had sufficient record support.

In re K.M.W.

Court: North Carolina Supreme Court

Docket: 356A19

Opinion Date: December 18, 2020

Judge: Ervin

Areas of Law: Family Law

The Supreme Court reversed the orders of the trial court terminating Mother's parental rights in her two children, holding that, given the very limited inquiry inquiry that the trial court undertook before allowing Mother's counsel's withdrawal motion, the trial court erred by allowing that motion. During the termination proceedings, Mother retained Roy Dawson to represent her. Dawson later filed motions seeking leave to withdraw as Mother's counsel in the proceedings. The trial court granted the request without further inquiry. After a termination of parental rights hearing, Mother's parental rights were terminated. Mother appealed, arguing that the trial court failed to make a proper inquiry before allowing Dawson's withdrawal motion. The Supreme Court agreed and reversed, holding that the trial court erred by allowing Mother's counsel to withdraw his representation of Mother without (1) making an adequate inquiry into the circumstances surrounding the making of that motion; and (2) inquiring, at the time Mother appeared at the termination hearing, whether she was represented by counsel, whether she wished to apply for court-appointed counsel, or whether she wished to represent herself.

In re R.D.

Court: North Carolina Supreme Court

Docket: 268A19

Opinion Date: December 18, 2020

Judge: Davis

Areas of Law: Family Law

The Supreme Court affirmed in part and vacated in part the judgment of the district court determining that termination of Father's parental rights was not in the child's best interests and dismissing Bethany Christian Services' petition to terminate parental rights, holding that a challenged portion of one of the trial court's findings of fact was erroneous. Specifically, the Supreme Court held (1) the trial court’s admission of the guardian ad litem’s report during the dispositional stage of the termination proceeding without allowing the child's guardian ad litem to be cross-examined about the report was not an abuse of discretion; and (2) the trial court’s written order contained a key finding of fact that lacked evidentiary support in the record and could be read as reflecting an inappropriate bias against adoption, and this inappropriate finding was prejudicial.

In re W.K.

Court: North Carolina Supreme Court

Docket: 458A19

Opinion Date: December 18, 2020

Judge: Morgan

Areas of Law: Family Law

The Supreme Court affirmed the orders of the trial court terminating Father's parental rights to his two biological children, holding that the trial court did not abuse its discretion in finding the existence of the ground for termination of neglect. On appeal, Defendant argued that his guardian ad litem, appointed pursuant to N.C. R. Civ. P. 17 and N.C. Gen. Stat. 7B-1101.1, did not participate sufficiently to satisfy the statutory requirements, and therefore, the trial court erred in advancing the adjudication and disposition proceedings. The Supreme Court affirmed, holding (1) Father did not identify any actions his guardian ad litem could have taken that would have improved Father's chances to obtain a decision in his favor and did not show that the guardian ad litem did not otherwise adequately assist him in executing his legal rights; and (2) the ground of neglect supported the termination of Father's parental rights.

In re Adoption of Y.E.F.

Court: Supreme Court of Ohio

Citation: 2020-Ohio-6785

Opinion Date: December 22, 2020

Judge: Donnelly

Areas of Law: Civil Rights, Constitutional Law, Family Law

The Supreme Court held that Ohio Rev. Code 2151.352 is unconstitutionally underinclusive as applied to indigent parents facing the loss of their parental rights in probate court and that indigent parents are entitled to counsel in adoption proceedings in probate court as a matter of equal protection of the law under the Fourteenth Amendment to the United States Constitution and Ohio Const. art. I, 2. Petitioners filed petitions in the probate court to adopt Mother's two children. Mother filed a request for appointed counsel, which the probate court denied. The court of appeals affirmed the denial of Mother's request for appointed counsel, concluding that equal protection and due process guarantees are inapplicable to requests for appointed counsel in adoption causes brought by private petitioners. The Supreme Court reversed, holding that the disparate treatment between indigent parents faced with losing parental rights in a custody proceeding in juvenile court, who are entitled to appointed counsel, and indigent parents faced with losing parental rights in an adoption proceeding in probate court, who are not entitled to appointed counsel, violates equal protection guarantees.

In Re: Passarelli Family Trust

Court: Supreme Court of Pennsylvania

Docket: 71 MAP 2019

Opinion Date: December 22, 2020

Judge: Donohue

Areas of Law: Civil Procedure, Family Law, Trusts & Estates

In this discretionary appeal, the Pennsylvania Supreme Court was asked to determine the burden of proof for a settlor of an irrevocable trust in order to void the trust on grounds of fraudulent inducement in the creation of the trust. The corpus of the Trust at issue here consisted of numerous assets totaling approximately $13 million, including two real estate property companies called Japen Holdings, LLC, and Japen Properties, LLP (collectively “Japen”). Although acquired during the marriage, Japen was owned 100% by Husband. Unbeknownst to Wife, among Japen’s assets were two residential properties in Florida. When presented with the Trust inventory of assets, Wife did not question its contents, which included Japen, but not a listing of its specific holdings, e.g., the Florida Properties. Approximately four months after the creation of the Trust, Wife discovered that Husband had been having an affair and that his paramour was living in one of the Florida Properties. Wife promptly filed for divorce. A month after that, she filed an emergency petition for special relief to prevent dissipation of the marital assets, including assets in the Trust. Wife argued that Husband’s motive in creating the Trust was to gain control over the marital assets and avoid equitable distribution. A family court judge accepted Wife’s argument by freezing certain accounts included in the Trust and directing Husband to collect rent from his paramour. The Supreme Court held that a settlor averring fraud in the inducement of an irrevocable trust had to prove by clear and convincing evidence the elements of common-law fraud. In doing so, the Court rejected the analysis set forth in In re Estate of Glover, 669 A.2d 1011 (Pa. Super. 1996), because it represented an inaccurate statement of the elements required to establish fraud in the inducement. The Court affirmed the Superior Court’s ruling that the complaining settlor did not prove fraud in the inducement.

In re Pamela Janson

Court: Supreme Court of Texas

Docket: 19-1109

Opinion Date: December 18, 2020

Judge: Per Curiam

Areas of Law: Family Law

The Supreme Court conditionally granted relief to Mother on her petition for mandamus and directed the trial court to vacate its order holding Mother in contempt, holding that Mother was entitled to her requested relief. After a hearing, the trial court signed an enforcement order finding Mother in contempt of forty-eight violations of an agreed order the trial court entered upon the separation of Mother and Father. On appeal, Mother argued that the agreed order was too ambiguous to be enforced by contempt. The Supreme Court agreed and granted a writ of mandamus to Mother, holding that the agreed order could not support the contempt order because it did not "set forth the terms of compliance in clear, specific, and unambiguous terms."

In re Dependency of A.L.K., L.R.C.K.-S., D.B.C.K.-S.

Court: Washington Supreme Court

Docket: 98487-5

Opinion Date: December 24, 2020

Judge: G. Helen Whitener

Areas of Law: Family Law, Government & Administrative Law, Native American Law

Two of L.K.’s three children were Indian children for the purposes of federal Indian Child Welfare Act of 1978 (ICWA) and Washington State Indian Child Welfare Act (WICWA). L.K. claimed the State Department of Children, Youth, and Families (Department) removed her children without making "active efforts" to keep the family together as was required under the two laws. The Court of Appeals did not address this issue but, instead, sua sponte found that under the invited error doctrine, L.K. was precluded from raising this issue on appeal, holding that because L.K. repeatedly contended she did not need services, she could not now claim on appeal that the Department did not provide her sufficient services under ICWA and WICWA. It did not reach the issue of whether the Department provided active efforts. The Washington Supreme Court reversed appellate court's holding regarding "invited error." With respect to "active efforts," the Supreme Court found the Department did not engage in the statutorily required active efforts to prevent the breakup of an Indian family. Accordingly, the dispositional order continuing L.R.C.K.-S. and D.B.C.K.-S.’s foster care placement was vacated. The matter was remanded for immediate return of these two children to their mother, unless the trial court finds returning the children put them in “substantial and immediate danger or threat of such danger.” The finding of dependency was unaffected.