CHAPTER 13
CHAPTER 13
ISSUES IN FAMILY LAW FOR PEOPLE WITH HIV
CAROLYN MCALLASTER, CAROL SUZUKI, AND JEFFREY SELBIN*
§ 13.1 Introduction
§ 13.2 Marriage
§ 13.3 Parenting and HIV
§ 13.4 Separation and Divorce
§ 13.5 Custody and Visitation
§ 13.6 Permanency Planning
§ 13.7 —Testamentary and Inter Vivos Guardianships
§ 13.8 —Introduction to Standby Guardianships
§ 13.9 —Issues in Standby Guardianship
§ 13.10 —Joint and Co-Guardianship
§ 13.11 —Powers of Attorney and Other Private Designations
§ 13.12 —Future Trends in Voluntary Permanency Planning
§ 13.13 Foster Care
§ 13.14 Termination of Parental Rights
§ 13.15—Disability Discrimination Challenges to Termination of Parental Rights
§ 13.16 Adoption Assistance
§ 13.17 —Eligibility for Federal Adoption Assistance
§ 13.18 —Types of Adoption Assistance
§ 13.19 —Interstate Compact on Adoption and Medical Assistance
§ 13.20—Legal Rights of Adoptive Parents Who Are Denied or Not Offered Adoption Assistance
§ 13.1 Introduction
In many respects, the family law needs of people with HIV are similar to those of persons not infected with the virus. We all come from families in one form or another, and most of us experience one or more of the complex challenges of partnering, parenting, and planning on a daily basis. In some instances, however—by virtue of their social, economic or health status—people with HIV have particular family law needs and challenges, and this chapter explores such issues.
The first four sections of the chapter describe HIV and family law in a chronology from marriage through divorce. The chapter opens with a discussion of HIV in the marriage context, including the short-lived efforts in some states to prevent people with HIV from marrying and the on-going attempts to provide HIV education and testing in the marriage licensing process (§ 13.2). HIV and parenting issues, with a focus on medical neglect and the treatment of HIV-infected children, are covered in the following section (§ 13.3). The next section describes HIV-related concerns in the context of divorce and separation, including HIV as “fault” for consideration in divorce and the division of marital property, and for HIV-related tort actions between spouses or partners (§ 13.4). Arising out of divorce or separation, child custody and visitation issues then are discussed, with particular attention to the significance of HIV in the application of differing legal standards in initial and modification determinations (§ 13.5).
The next seven sections of the chapter explore “permanency planning,” an evolving area of family law that is of importance to the increasing number of parents with HIV in the United States. The first section begins by describing the history of permanency planning and its significance for HIV-infected parents (§ 13.6). The traditional permanency planning tools for parents—including testamentary and inter vivos guardianships—are discussed in the next subsection (§ 13.7). The following subsection introduces standby guardianships—the single most significant permanency planning innovation for parents with HIV—and their legislative history (§ 13.8). The many important issues and challenges inherent in standby guardianship regimes are set forth, with particular focus on their implications for families affected by HIV (§ 13.9). Other major initiatives, including joint and co-guardianship in California and Connecticut, are described and contrasted with standby guardianship (§ 13.10), followed by a discussion of the availability of powers of attorney and other private designations as permanency planning tools for parents with HIV (§ 13.11). The final subsection describes future trends on the permanency planning horizon, including a brief description of the recently proposed concept of “concurrent” guardianship and the recently enacted provision for standby adoption in Illinois (§ 13.12).
The increasing intersection of poverty, substance abuse, and HIV means that a growing number of HIV-affected families are forced to interact with the public child welfare system. Child welfare issues—such as the termination of parental rights, adoption, foster care, and subsidized guardianships—are an ominous presences in the lives of many parents with HIV and their children.1 The next section explores issues relating to the foster care system, including kinship care, subsidized guardianships, HIV testing in dependency cases, and the foster care implications of HIV-positive members of the foster care family (§ 13.13). Termination of parental rights, with a discussion of the Adoption and Safe Families Act and the implications of the Americans with Disabilities Act on termination proceedings, are covered in the next sections (§§ 13.14–13.15). The final sections address the availability, eligibility for, and types of adoption assistance available to parents who adopt children with special needs, especially those from families affected by HIV (§§ 13.16–13.19). A section on the legal rights of adoptive parents who are denied or not offered adoption assistance concludes the chapter (§ 13.20).
It is important to note what is not included in this chapter. First, the relationship between HIV and heterosexism—though present in virtually all areas of law—poses challenges that are particularly acute in family law. The bias against gays, lesbians, bisexuals, and the transgendered in law and among lawyers and judges is magnified in the family law context, where almost any assertion of the rights of nontraditional families calls into question the definition of family itself. Though these issues are profoundly important, they are also beyond the scope of this chapter. Nevertheless, advocates must be aware of and prepared to address the discrimination facing the HIV-infected client who also may be a sexual minority.2
§ 13.2 Marriage
Attempts to regulate marriage in regard to HIV, either by imposing HIV testing as a prerequisite to marriage, or by forbidding marriage between persons with HIV, have been proposed in many states, but not widely adopted. Such legal measures are now viewed as futile in terms of public health policy. Illinois and Louisiana previously imposed HIV testing as part of their required premarital exam, but both those standards have been repealed.3 These statutes did not prohibit marriage for those testing positive, but did require disclosure of positive results to the other partner before marriage. As is the case with mandatory screening programs imposed on populations that are not, overall, at high risk for HIV, the Illinois program resulted in very few HIV-positive test results. Many people apparently avoided the HIV test by applying for marriage licenses in neighboring states, where HIV testing was not required.4 Missouri currently has a law that allows the department of health to mandate premarital HIV testing “if the Centers for Disease Control so indicates.”5
Several states require that applicants for marriage licenses be provided with educational information about HIV/AIDS, including information about HIV counseling and testing services.6 In some states the provision of the educational materials must be documented with the marriage license forms7 or the applicants for the marriage license must sign a form acknowledging that both have received the material.8 Michigan recently repealed its law requiring that applicants for marriage licenses receive counseling regarding the transmission and prevention of HIV infection. Effective January 1, 2001, applicants for marriage licenses in Michigan must be given educational materials by the county clerk regarding the transmission and prevention of venereal disease and describing the availability of HIV testing. The applicant must indicate the receipt of these materials on the application for the marriage license.9
Apparently only one state, Utah, passed legislation specifically barring marriage for partners who are infected with HIV.10 That statute was found to violate both the Rehabilitation Act of 1973 and the Americans with Disabilities Act of 1990 in a case in which the defendants, the Utah Governor and Attorney General, moved for summary judgment declaring the statute void and invalid and enjoining its further enforcement.11 The Utah statute, adopted in 1987, barred persons with HIV from marrying, but did not require testing prior to the marriage. The plaintiffs were two women, one of whom was diagnosed with AIDS in 1989, two months after she was married. If marriages were ruled invalid under the 1987 law, the plaintiffs were concerned about the loss of marital benefits, including those paid to the surviving spouse as a result of the marriage. The law also could have affected the status of adoptive children.
While not specifically referring to HIV infection, Oklahoma still has a law on the books which makes it a felony for an infected person to marry “before being discharged and pronounced cured by a physician in writing.”12 This statute would appear to violate the Americans with Disabilities Act as discrimination against persons with a disability by a public entity, under the reasoning of T.E.P. v. Leavitt.13
§ 13.3 Parenting and HIV14
The United States Supreme Court has made it clear that the parent-child relationship is constitutionally protected and that parents have a liberty interest in raising their children without undue interference from the state.15 The parent’s liberty interest, however, is not absolute and must be balanced against the state’s recognized power to intervene in the relationship to protect children from abuse or neglect.16 Most if not all states now have child protection statutes authorizing such intervention in cases of child neglect or abuse.17 This intervention may involve the removal of a child from the parent’s custody or other actions to ensure that the child is protected from actions or omissions, which threaten the child’s welfare.18 In cases of medical neglect, where a parent has failed to give consent for medical treatment necessary for the life or safety of a child, court action ranges from appointing a guardian with limited powers to removing the custody of a child.19 This section will focus on the issue of state intervention in the event a parent refuses to submit her HIV-infected child to recommended treatment.
Medical Neglect and Treatment of HIV-Infected Children. In the case of A.D.H. v. State Department of Human Resources,20 an Alabama trial court directed the mother to follow medical recommendations that her two and one-half year old HIV-infected child be treated with Retrovir (AZT). A medical expert testified that such treatment could slow both the replication of the virus and the development of clinical symptoms. The mother argued that treatment with AZT was not “emergency medical treatment” as defined by the Alabama statute.21
Based on the child’s treating physician’s testimony that “giving the medication would prolong life and the quality of that life,” however, the appellate court rejected the mother’s argument and affirmed the trial court’s order directing that she submit her child for treatment for HIV.22 Also crucial to the appellate court’s holding was its conclusion that the mother was “incapable of making a well-reasoned, rational decision regarding treatment that was in the best interests of her child.”23 The court emphasized that its decision did not “abrogate the authority of an informed and reasoned parent to make crucial and sometimes controversial decisions concerning medical treatment of their children.”24
The case of an informed and reasonable parent who refused to submit her HIV-infected child to recommended drug treatment presented itself in the Maine case of In re Nikolas E.25 The mother of Nikolas, who was HIV-infected herself, had already lost one child to AIDS at the age of four. When she and Nikolas were referred to a pediatric infectious disease specialist, the specialist recommended a three-drug combination therapy known as highly aggressive antiretroviral therapy (HAART). The mother did not trust the recommended therapy, based in part on “her experience with the drug therapy that accompanied the tragic and painful death of her daughter.”26
After the mother refused to permit her son to undergo the treatment, the state arranged for her to consult with the Chief of the Division of Infectious Diseases at Children’s Hospital in Boston, Dr. Kenneth McIntosh. Dr. McIntosh concurred with the first doctor’s recommendations, but could not give her definitive information about long-term side effects of the drug regimen.27 After fully discussing the risks and benefits of the recommended treatment, the mother decided to refuse it. Dr. McIntosh was of the opinion that “no child should be started on this program unless his parents are fully accepting and in support of the treatment.”28 Nonetheless, the state filed a petition for a child protection order seeking custody of Nikolas so he could be treated as recommended by the specialists.
The Maine child protection statute requires the court to decide whether the child “is in circumstances of jeopardy to his health or welfare.”29 “Jeopardy” is defined as “serious abuse or neglect, as evidenced by . . . deprivation of adequate food, clothing, shelter, supervision or care, including health care when that deprivation causes a threat of serious harm.”30 Important to the trial court’s decision to deny the state’s petition was the court’s conclusion that “the long term effects of the drug therapy were essentially unknown.”31 The court also noted that the mother’s decision was rational and reasoned and that she had an open mind about the treatment and would reconsider her decision should Nikolas’s health deteriorate significantly.
The appellate court reviewed the factual findings for clear error and found none. The court held that the evidence, including that of Dr. McIntosh, was insufficient to support a finding of “serious child abuse or neglect.”32 Even though Dr. McIntosh believed that the drug therapy would be beneficial to Nikolas, he also testified that the long-term effects of the treatment were unknown and that it is possible that children who are treated with the recommended drugs could develop a resistance to the therapy that would lessen the effectiveness of subsequent therapies.33 Finally, the court pointed out that the trial court had to weigh the interests of the state, the child, and the mother, in addition to balancing the benefits and risks of treatment versus declining treatment. The court emphasized that a decline in Nikolas’s health or a more compelling showing of the proposed treatment’s efficacy could, in the future, shift the balance in favor of treatment.
A 1999 Oregon case, which captured considerable media attention, involved an HIV-infected mother who resisted standard medical recommendations designed to prevent transmission of HIV to her infant, namely that she refrain from breast-feeding her newborn and that she give him AZT on a regular schedule for six weeks after birth.34 In 1994, the AIDS Clinical Trials Group (ACTG) 076 Protocol demonstrated that giving AZT to the HIV-infected mother during pregnancy and delivery and to the newborn for six weeks after birth dramatically reduced the risk of perinatal HIV transmission by two-thirds.35 In addition, according to prevailing medical opinion in the United States, breast-feeding by an HIV-infected mother may transmit HIV to the baby and, because safe alternatives to breast-feeding exist in this country, should be avoided.36
Four days after Felix Tyson was born, an Oregon trial court transferred his legal custody to the state and ordered that the baby be given AZT treatment for six weeks following birth. In addition, his mother was ordered not to breast-feed. The baby was left with his parents, but the court’s order was monitored by child protective service caseworkers who visited the home regularly. According to media reports, the parents are part of a so-called “Rethinking AIDS” movement.37 They do not believe that HIV causes AIDS, nor do they believe that HIV can be transmitted through breast milk. They believe further that AZT is toxic and ineffective. The court, after hearing from competing medical experts, found that the mother is HIV-positive, that the child is presently HIV-negative, and “that HIV virus can be transmitted by breast milk.”38 The court continued the previous order leaving the four-month old baby in the custody of the state and continuing the order that the mother not breast-feed her child.39 By then the baby had already been given the six-month regimen of AZT. The court’s order was necessary, according to the judge, to protect the child from the risk of the “introduction of a fatal disease,” and was required to protect the child’s best interests.40
§ 13.4 Separation and Divorce
When one or both partners in a relationship are infected with HIV, the stress created by the manifestations of the disease can be overwhelming. The aftermath of a positive HIV test is devastating to any relationship. For the uninfected partner, often added to that stress is the fear of infection and the suspicion of either a heterosexual or homosexual extra-marital affair or drug use. The uninfected partner may seek legal redress through fault-based claims in a divorce or property distribution action, or in a separate tort action.
Fault as a Consideration in Divorce or Property Division. Most jurisdictions allow for the dissolution of marriages without regard to the fault of the parties to the marriage.41 Many states, however, continue to recognize traditional fault-based grounds for divorce.42 The fault involved must typically be serious misconduct that contributes to or causes the break-up of the marriage,43 although there are no reported cases in which a spouse’s HIV infection was the specific basis for a finding of fault in a divorce proceeding. Many jurisdictions, however, recognize fault-based grounds for divorce in which HIV infection might be implicated. These include adultery, drug abuse, or knowingly infecting a spouse with a sexually transmitted disease.44
Statutes vary, as well, with regard to the consideration of fault in determining property division. Some states take marital misconduct into account when dividing property and others do not.45 Courts in Indiana and New York have rejected plaintiffs’ attempts to interject fault into the division of the parties’ marital property.46 Both Indiana and New York have abolished marital property distribution based on fault. In the case of R.E.G. v. L.M.G., the Indiana trial court awarded the wife 60 percent of the marital property based on a finding that the husband’s homosexual relationship “may have placed the wife at risk for developing Acquired Immune Deficiency Syndrome (AIDS).”47 On appeal, the Indiana Court of Appeals found that the property division was based, at least in part, on fault, and admonished the trial court by saying, “we will not tolerate the injection of fault into modern dissolution proceedings.”48 The court discussed the fact that the Indiana Dissolution of Marriage Act expressly abolished fault grounds for divorce. The Indiana Court of Appeals soundly rejected the trial court’s additional rationale for the uneven division, namely “the wife’s fear that she was at risk for AIDS impacted her future economic circumstances” as being based on insufficient evidence.49 The court reversed the trial court’s decision and remanded the case for an equal division of the marital property. The court also reversed the trial court’s award of attorney’s fees to the wife, holding that they were based in part on fault.50
In the New York case of Doe v. Doe,51 the wife’s divorce complaint included a cause of action seeking compensatory damages for intentional infliction of emotional distress based on her husband’s failure to disclose that he had had homosexual relationships which allegedly placed the wife at risk of contracting HIV. The husband had tested negative for HIV and the wife refused to be tested. The court held that the wife was attempting to obtain a division of marital property based on fault. The court allowed the husband’s motion to dismiss the claim based on clear precedent in New York which holds that division of property, based on fault, has been disallowed “absent a showing of exceptional circumstances.”52 The court also dismissed the wife’s fraud claim holding that “an alleged injury solely for humiliation, embarrassment and a possible threat are not viable injuries from fraud under New York law.”53
Tort Actions between Spouses or Partners.54 As in the Doe case, separating partners, some of whom have contracted HIV from their sexual partners and others who fear that they have been placed at risk of contracting HIV from their sexual partners, have also pursued tort actions, sometimes in the same complaint as the divorce action.55 To state a cause of action for wrongful transmission of HIV under various tort theories, plaintiffs are required to allege a legal duty owed by the defendant, a breach of that duty, and a causal relationship between the breach of the duty, and plaintiff’s injury.56
In such tort actions, courts have recognized that an HIV-infected individual has a duty not to knowingly or negligently expose a sexual partner to HIV,57 an extension of the duty recognized in the context of communicable diseases generally over the years.58 In 1993, a federal district court in Doe v. Johnson,59 a case brought against Magic Johnson for wrongful transmission of HIV through consensual sexual contact, described the duty in the HIV context. The court held that Johnson owed the plaintiff a duty to disclose the fact that he may have HIV if: “the defendant has actual knowledge that s/he has the HIV virus; the defendant has experienced symptoms associated with the HIV virus; or the defendant has actual knowledge that a prior sex partner has been diagnosed as having the HIV virus.”60 The court specifically went on to hold, however, that a defendant who has engaged in “high risk” activities, such as unprotected sexual encounters with multiple partners, does not have a duty to inform his or her sexual partner of past sexual activity. A New York court, in the 1995 case of Plaza v. Wisser,61 held that plaintiff stated a cause of action for wrongful transmission of HIV based on allegations that during their sexual relationship his sexual partner knew or had reason to know that he was infected with HIV prior to his actual diagnosis, and further that he knew his prior sexual partner was HIV-positive.
The court in the recent New York case of O’Neill v. O’Neill62 held that a husband could not recover damages for intentional and negligent infliction of emotional distress and fraud from his wife based on her failure to inform him that her first husband had died of AIDS. To prevail, the husband was required to prove actual exposure to HIV. He was unable to do so because his wife had tested HIV-negative three times before beginning to socialize with her future husband.
The HIV-infected partner’s duty was most recently defined by a Florida court in Delay v. Delay,63 involving a wife’s claim against her husband for wrongful exposure to HIV. The parties married in 1989 after the husband misrepresented to his wife that he had been tested for sexually transmitted diseases and “had no problems.”64 The husband subsequently tested positive for HIV in 1992. The couple’s last unprotected sexual contact was in 1992. As of 1996, the wife was still testing negative, but testified that she feared getting AIDS. The court found that, even though the husband misrepresented the fact that he had been tested for sexually transmitted diseases prior to the marriage, the wife was required to prove that her husband knew or had good reason to know he was infected with HIV before 1992, when he was tested, and that she failed to do so.65
In an early Minnesota case, C.A.U. v. R.L.,66 the parties were sexually involved from 1984 through April of 1985. The plaintiff claimed that, due to his alleged past homosexual contacts, her fiancé should have known and warned her that he had HIV during their sexual relationship. The court, pointing to the sparse media coverage about AIDS prior to May of 1985 and the fact that the defendant could not have been tested anonymously for HIV until July of 1985, held that it was not reasonably foreseeable that defendant had HIV or could cause harm to his fiancé through intimate sexual contact. The court, therefore, held that defendant did not have a duty to warn his fiancé that he had HIV.
It is clear that a person, who knows or should know he is infected with HIV, and who conceals his status from his sexual partner, is liable for damages should the partner contract HIV as a result of unprotected sex.67 The uninformed sexual partner who does not contract HIV, but who is exposed to the virus through unprotected sex, also may be entitled to compensation for the emotional distress caused by the fear of contracting HIV.68 Courts often narrow the period of recovery for such distress to a specific period of time during which the fear is considered reasonable.69 This so-called “window of anxiety” is the period of time between the discovery of exposure and the receipt of an HIV-negative test six months after exposure.70 Courts differ as to the severity of the emotional distress required to recover such damages. In J.B. v. Bohonovsky,71 for example, the plaintiff was exposed to HIV after having had unprotected sex with the defendant, but was not infected. The New Jersey court held that although actual transmission of HIV was not required in order for the plaintiff to recover damages, the plaintiff had failed to prove the severe emotional distress necessary to support a claim for intentional infliction of emotional distress.
In contrast to the decisions that hold that exposure, but not actual transmission of HIV, is required to state a compensable injury, is the New York case of Petri v. Bank of New York Co.72 Petri is an employment discrimination case that included a claim by a discharged employee for intentional infliction of emotional distress against a former co-employee. The plaintiff alleged that he suffered emotional distress after having had a sexual relationship with a co-employee who failed to inform him that he had been HIV-infected for three years. The court disallowed the claim, holding that a person who has been exposed to HIV, but who has not contracted the virus, has not suffered a physical injury for which a recovery of damages may be allowed. However, a year after the Petri case was decided, another New York court held, in Tischler v. Dimenna,73 that a girlfriend stated a prima facie claim for the emotional distress caused by her fear of contracting HIV from her boyfriend, even though she was still testing negative for HIV over a year after her boyfriend died of AIDS.
§ 13.5 Custody and Visitation
It is always difficult when partners in a relationship decide to separate. Add HIV to the mix and the separation can become more complicated. When there are children involved, the non-infected parent may attempt to use the HIV status of the infected partner to gain the advantage in a visitation or custody dispute.
Parents who have sought to raise the HIV status of the other parent in the reported visitation and custody cases have primarily attempted to argue that there is a risk of transmission from the HIV-infected parent to the children. Courts generally have rejected this argument—holding that, because HIV is not transmitted through casual contact, a parent’s HIV status is irrelevant to the custody or visitation determination—and have limited their inquiry to the question of whether the parent is able to care for the child.74
In addition, claims that a parent with HIV is unable to care for the children due to symptoms of the illness also have been unsuccessful.75 In future cases, if a parent’s ability to care for his or her children is significantly affected by symptoms of AIDS or HIV, then that factor will presumably be weighed by the courts as it is in cases involving non-HIV-related disabilities.76
Initial Custody Determinations. The prevailing standard for deciding initial custody disputes is the best interest of the child.77 Courts typically weigh several factors when deciding what is in the children’s best interests in custody determinations. The Uniform Marriage and Divorce Act, for example, sets out five factors which have been adopted by many states, including: (1) the wishes of the child’s parent or parents as to his custody; (2) the wishes of the child as to his custodian; (3) the interaction and interrelationship of the child with his parent or parents, his siblings, and any other person who may significantly affect the child’s best interest; (4) the child’s adjustment to his home, school, and community; and (5) the mental and physical health of all individuals involved.78 Some litigants have attempted to use this last factor to deny custody or limit visitation based on the HIV infection of a parent or a third party who has regular contact with the child or children.
Because HIV is not transmitted through casual contact, the Kentucky Court of Appeals has held that custody cannot be denied based solely on the HIV status of a parent or stepparent. In Newton v. Riley,79 the father petitioned the court for sole custody of his children, seeking to modify a joint custody arrangement upon learning that the children’s mother had married an HIV-infected man. Because the parties had joint custody, the court decided the case as an initial custody determination. The court applied the best interests standard, focusing on the statutory provision that required the court to consider “the mental and physical health of all individuals involved” in determining what is in the child’s best interests.80 After concluding that there is no recognized risk that the children would become HIV-positive through casual contact with their stepfather, the court held that cohabitation of a custodial parent with an HIV-infected stepparent is not sufficient grounds for modifying custody.
The Supreme Court of Mississippi in Blevins v. Bardwell,80.1 a case that the court treated as an initial custody case, affirmed the trial court’s partial reliance on the home environment of the father in upholding the award of custody to the mother. The trial court found that the father lived with his HIV-positive hemophiliac father who also suffered from cancer and was a heavy smoker. The trial court emphasized that it was not reacting to an “irrational fear or prejudice of persons who are HIV positive.”80.2 Instead the trial court focused on the fact that the toddler would be in the home of a “critically ill patient” in an atmosphere “tainted with smoke.”80.3
In the only jurisdiction in the United States with such a statute, Florida courts are prohibited from denying shared parental responsibility, custody, or visitation rights to a parent or grandparent solely because the parent or grandparent “is or is believed to be infected with HIV.”81 The Florida statute provides further, however, that the court may condition custody or visitation rights upon the parent or grandparent’s agreement to observe universal precautions to prevent the transmission of HIV approved by the Centers for Disease Control or by the Florida Department of Health.
Initial Visitation Determinations. Visitation rights of a non-custodial parent will typically be denied or limited only if there are “exceptional circumstances” showing that visitation would be harmful or detrimental to the best interests of the child.82 The Uniform Marriage and Divorce Act, which has been adopted by many states, provides that visitation rights may only be denied or restricted where the court finds, after a hearing, that visitation would seriously endanger the child’s physical, mental, moral, or emotional health.83 Only rarely does outright denial of visitation occur.84
Courts generally have held that a parent’s HIV infection does not, in and of itself, present a danger to the child, and that visitation cannot, therefore, be limited or denied based solely on a parent’s HIV-positive status.85 In Jane W. v. John W.,86 a New York court considered the right of a father with AIDS to visit pendente lite with his one and a half-year-old daughter. The court first considered the issue of whether there was a risk of HIV transmission to the child and then held—based primarily on the expert testimony presented—that the possible transmittal of HIV “should play little if any role” in deciding the visitation application.87 The non-infected mother also argued that the father with AIDS was unable to care for his child because of his illness. The court, after examining the evidence, found that the father “is entirely capable of caring for the child,” with no “exceptional circumstances” requiring limitation of his visitation rights.88
In at least three cases, mothers seeking to limit visitation, based primarily on the father’s sexual orientation, have interjected their fears of exposure of the children to HIV.89 In the Maryland case of North v. North,90 the mother requested that the trial court deny all visitation to the father, a gay man infected with HIV. In her motion she set out her concerns about the “harmful psychological effects” the visitation in a “homosexual and or lesbian environment” would have on the children.91 She also expressed concern about the “serious health risks to her children” due to the father’s HIV infection.92 After a hearing, the trial court denied the father overnight visitation.93 The appellate court, in reviewing the trial court record, found that the limitation of the father’s visitation was based, not on his HIV status, but on “the perceived harm arising from exposure of the children to his ‘homosexual lifestyle.’”94 The court remanded the case, holding that the trial court abused its discretion in denying overnight visitation, because there was no finding that the children were more likely to be exposed to a “homosexual lifestyle” in the evening than during unsupervised visits during the day. The court also specifically held that a child’s visitation with an HIV-infected parent cannot be restricted absent a showing that such restriction is necessary to prevent harm to the child’s physical health or emotional development.95
In the Ohio case of Conkel v. Conkel,96 a custodial parent asserted that her children might contract AIDS from their father during visitation based on the fact that her ex-husband was bisexual, lived with a male friend, and occasionally engaged in sexual acts with the friend. The court rejected the mother’s attempt to deny overnight visitation to the father, noting that there was no evidence that the father was HIV-infected. The court went on to acknowledge that HIV is not transmitted by “casual household contact.”97
Modification of Existing Custody or Visitation Orders. In cases involving attempts to modify existing custody or visitation orders, litigants in most jurisdictions must show that a substantial change of circumstances has occurred since the last custody or visitation order, necessitating a change in custody or visitation to promote the best interests of the child.98 Even though a material change of circumstances has occurred since the entry of the custody or visitation order, most jurisdictions do not allow a change in the existing order unless the material change affects the welfare of the child. Among the facts and circumstances to be weighed are those that impact the child’s physical well-being.
Courts have rejected the argument that a parent’s HIV-positive status is in and of itself a threat to a child’s physical or psychological well-being and have refused to modify custody based on the discovery that the custodial parent is HIV-infected.99 For example, the father in Steven L. v. Dawn J.100 sought to modify a previous custody order after the child’s mother tested positive for HIV. The New York court found that the mother’s HIV infection was of “paramount importance” at trial even though it had not been specifically alleged as a changed circumstance warranting modification of custody.101 The court, however, denied the father’s motion to modify custody, holding that the mother’s HIV infection could form the basis for custody modification only if the HIV “in and of itself poses a danger to the child.”102 The court cited with approval the numerous studies that have found “no risk of HIV infection through close personal contact or sharing of household functions” and held that infection with HIV alone is not grounds for a change in custody.103 The court also found that the mother was not incapacitated by her HIV infection and was able to care for her child.
In Stewart v. Stewart, an Indiana trial court terminated an HIV-infected father’s right to visit his daughter stating that “even if there was a one percent chance that this child is going to contract it [HIV] from him, I’m not going to expose her to it [HIV].”104 After concluding that current medical knowledge showed that HIV is not transmitted through everyday household contact, the Indiana appellate court reversed, holding that termination of visitation was an “extreme and unwarranted action.”105 The court remanded the case to the trial court with the specific instruction that a visitation order be fashioned that does not preclude visitation to the father “solely on the basis that he is infected with the AIDS virus.”106
Finally, the Tennessee Court of Appeals, in the case of Sherman v. Sherman,107 rejected a mother’s assertion that her children should not be permitted to visit their father at the ranch where his HIV-infected brother also lived. In rejecting the motion to place geographical restrictions on the father’s visitation, the court held that the mother had not presented medical or epidemiological evidence that permitting the children to visit their father would significantly increase their risk of exposure to HIV.
HIV Testing in Custody and Visitation Cases. Efforts to compel HIV testing of parents as a condition of custody or visitation have been rejected by the courts that have decided the issue.108 These courts have recognized the social and psychological dangers of stigmatization and discrimination that can result from a positive HIV test and have noted the strong public policy against involuntary HIV testing and the strict confidentiality provisions in place when persons obtain an HIV test voluntarily. Courts have also discussed the Fourth Amendment concerns raised by involuntary HIV testing.
For example, the Tennessee case of Sherman v. Sherman109 involved a dispute over visitation between the father and his two daughters. After the parents divorced and the mother obtained custody, the children visited their father at their grandparent’s ranch. The father lived on the first floor of a house adjacent to his parents and his brother and companion lived on the second floor. After the children’s mother discovered that the companion of the father’s brother had died of AIDS and that the children’s uncle was himself HIV-infected, she filed a motion asking the court to restrict the father’s visitation rights and not permit the children to visit at the grandparent’s ranch. She further requested that the father’s visitation be restricted to a 100-mile radius around the town in which she lived.110 The trial court declined to place geographical limitations on the father’s visitation, but on its own motion required the father and his parents to submit to periodic HIV testing and provide the mother with the results of the tests.111
The Tennessee Court of Appeals—after discussing the Fourth Amendment concerns raised by involuntary HIV testing and the potential for ostracism and psychological harm that can result from a positive HIV test—concluded that periodic testing of a parent for HIV would only be appropriate “if the court has reasonable grounds for concluding that periodic testing is necessary to protect a child’s health and that the value of requiring the test outweighs the potential prejudice to the person required to undergo testing.”112 Finding no evidence that such periodic testing was necessary to protect the children’s health, the appellate court vacated the trial court’s order requiring such testing. The court of appeals went on to vacate that portion of the trial court’s order which required the children to sleep in their grandparents’, rather than their father’s, home while visiting. Finally, the court affirmed the trial court’s decision against placing restrictions on the location of the father’s visits with his children.
A New York court went even further than the Tennessee court and held, in the case of Doe v. Roe,113 that a showing of compelling need must be made before a person can be ordered to undergo an involuntary HIV test as a condition of custody or visitation. In Doe, maternal grandparents sought custody of two grandchildren from the custodial father after receiving information that the father had told various persons that he had AIDS. The grandparents sought an order compelling the father to submit to an HIV test. Despite the fact that the grandparents did not argue that the children would be in danger from living with their father, the court cited with approval the studies that have established that there is no risk of HIV infection through close personal contact or the sharing of household functions. The grandparents, however, also asserted that: (1) a person with AIDS has a minimal life expectancy, which should be considered by the courts in awarding custody; and (2) the court should consider whether a person facing “a death-threatening illness” is prone to take his own life and that of others. The court-appointed psychiatrist testified that, even if the father did have AIDS and a shortened life expectancy, this fact would not justify removing the children from their long-term custodial parent and disrupting the strong bonds between the children and their father. The psychiatrist also saw no evidence of suicidal ideation and testified that the father’s knowledge of the disease, assuming he had such knowledge, would present no danger to himself or the children. The court held that the grandparents had failed to present a compelling need to have the father involuntarily tested for HIV and denied their motion.114
Two New York courts, in the context of child abuse cases, have also denied motions to compel the accused abuser to submit to an HIV test.115 Both courts relied on New York’s Public Health Law, which requires written informed consent of the person being tested unless “specifically authorized or required by a state or federal law,”116 and rejected arguments that New York Family Court Act § 1038(a) authorizes involuntary HIV testing, since that statute would permit the testing “only if the court finds probable cause that the evidence is reasonably related to establishing the allegations in a petition.”117 The court in In re Michael “WW” found that the results of an HIV test would not be probative on the issue of whether the respondent committed the acts of sexual abuse charged.118 Similarly, the court in In re Harry G. held that there was no nexus between the abuse and neglect allegations and the need given for testing.119
Importance of Expert Testimony. In cases involving efforts to limit or terminate custodial or visitation rights of HIV-infected parents, attorneys must be prepared to present expert medical testimony from infectious disease specialists and other evidence making clear that HIV cannot be transmitted through casual contact. Many trial judges need to be educated about HIV transmission methods and also may need to be convinced that children are not at risk from an HIV-infected parent. Further, such expert testimony is crucial in establishing a trial court record in the event that the trial judge’s decision must be appealed.
An example of the irrational fears that can guide the decisions of certain trial judges in these cases is the case of In re T.N.V., in which a Texas trial judge, in response to an HIV-infected father’s petition for voluntary legitimation of his daughter and his motion for temporary visitation, required the child to be “fully robed and fully clothed with gloves, sterile gown and face mask” during visits.120 The trial court further ordered that there be no “skin to skin” contact at any time during the visit, and that no visits occur “at any time during which the child might have any open cut, blisters, or other type of bodily abrasion which could conceivably allow the transmission of this illness to the child.”121 After the entry of this order, the father requested that his case be dismissed, which the trial court granted, but with prejudice. Although the merits of the visitation order itself were not the subject of appellate review, the court of appeals modified the trial court’s judgment to dismiss the case without prejudice.122 When trial judges make decisions based on fear and ignorance, attorneys must have sufficient expert testimony in the record to increase the likelihood of successful appeal of such decisions.
§ 13.6 Permanency Planning
Parents living with HIV face a myriad of challenges and choices when planning for the future care of their minor children.123 The complex and conflicting rights and responsibilities of parents and other caregivers arise out of more than a century of halting and uneven common law and statutory developments among the states. Significant tensions and ambiguities exist in the public and private child welfare regimes that are supposed to balance—and protect—the interests of minors and their families. Though much more recent in origin, most of the important planning opportunities for people with HIV have arisen from, and in turn influenced, the ongoing effort to resolve larger issues of child welfare policy and practice in the United States.
The concept of permanency planning—the notion that every child is entitled to a safe, stable and secure living environment as a foundation for healthy development—has its statutory origins in the federal Adoption Assistance and Child Welfare Act of 1980 (“Child Welfare Act”).124 The Child Welfare Act stated that a goal of the child welfare system, in which children are legally wards of the state, is to reduce the amount of time that children spend in foster care by increasing reunification with their natural parents. When reunification is not possible, the Act calls for the freeing of children from foster care for adoption or permanent guardianship placement. Though permanency planning continues to be the stated goal of the child welfare regime, as most recently articulated in the federal Adoption and Safe Families Act of 1997 (ASFA),125 there is substantial evidence that the system as a whole continues to fail many children.126
The HIV epidemic in the United States—in particular its impact on tens of thousands of parents in the third demographic wave of the epidemic127—has focused heightened attention on the availability of “private,” voluntary permanency planning mechanisms. The dramatic rise in the number of families with terminally ill parents, along with the increasing number of households headed by single parents and grandparents, has created demand for planning tools that are more responsive to the needs of families in crisis.
This section—and the subsections hereunder—will focus primarily on the voluntary planning options available to parents with HIV. First, it will review the traditional planning mechanisms, including testamentary and inter vivos guardianships, which are available to all parents attempting to provide for the future care of minor children (§ 13.7). The advantages and disadvantages of those regimes will be discussed, with special attention paid to the implications of each regime for parents with HIV.
Second, these sections will describe more recent innovations in voluntary planning, including standby guardianships, joint and co-guardianships, and other statutorily authorized private designations (§§ 13.8–13.12). Many of these reforms were designed specifically to address the shortcomings of the traditional options; the significant features of each will be explored, as will their relative strengths and weaknesses as planning tools for parents with HIV.
It is important to note that parents with HIV who are planning for the future care of their children must grapple with many non-legal issues not covered here. Psychosocial issues, including substance use if present, are critical during the permanency planning process.128 Choosing a guardian or alternate care provider alone can be an enormously difficult emotional and logistical task.129 Addressing the complex financial, housing, and medical care needs facing many families with HIV—especially if the family has limited resources as most HIV-affected families with children in the United States do—can often determine the relative success of a permanency plan.130 Advocates must not lose sight of these co-existing client needs while focusing on the legal issues related to permanency planning.
§ 13.7 —Testamentary and Inter Vivos Guardianships
Until recently, all parents—whether terminally ill or not—generally have had two legally recognized options for planning for the future care of children: testamentary and inter vivos guardianships.131 A testamentary guardianship is commenced by the nomination of a guardian or guardians for a minor in a will or other legally enforceable writing. Such a guardianship is established only after the death of the testator. An inter vivos guardianship may be established at any time by a parent/custodian who is willing to relinquish most of her parental rights and responsibilities during her lifetime. Unfortunately, as discussed below, these permanency planning tools are inadequate for the parent who wishes both to maintain control and custody of her children while she is capable of doing so, and to provide for their care in the event of her incapacity or death.
Nomination of a Guardian by Will or Other Writing. Many parents plan for the future care of their minor children by nominating a guardian in a will.132 To be valid, a will must be properly executed by a competent adult. Typically the will must be in writing, signed by the parent, and attested by at least two other disinterested witnesses.133 Additional requirements as to form and content vary by state, but generally are not onerous. Many states also permit parents to nominate guardians for children via a written document outside of a will.134
There are sound reasons to plan for the future care of children in a will or other legally recognized writing. First, will execution can be a relatively quick, simple, and private legal act; a basic will expressing core wishes, including the testator’s preferences with regard to a guardian, can be drafted and executed in the same day.135 In fact, assistance with such documents has been an essential function of the scores of legal referral panels and direct legal services providers to people with HIV since the earliest days of the epidemic.136 Importantly, courts generally are required to give deference to the wishes of a parent regarding a will-nominated guardianship, presuming the parent knows what is best for the child.137 Whether as a primary planning tool or as a back-up document in case other planning fails, a will is an important piece in the overall permanency planning process.
The potential drawbacks of planning for the care of children by will alone, however, are numerous. First, a nomination by will becomes effective only after the death of the nominating parent.138 If a sick parent becomes incapacitated during the course of her illness, the will-nominated guardian does not have the authority to assume any responsibility for the care of the child prior to the parent’s death. Since a parent with HIV might experience one or more such periods of incapacity, a will is insufficient as the only permanency planning tool.
Second, most states prohibit appointment of a guardian by will unless the testator is the sole surviving parent, or the rights of the other parent have been terminated.139 Even if the testator is the sole surviving parent, she can only nominate a future guardian, not actually establish a guardianship via the will. Though the court normally gives preference to the wishes of a parent, a testamentary guardianship nomination is not legally binding. A third party, such as a family member, can contest the appointment of the guardian or the court can disregard the testator’s wishes by finding that a guardianship with the nominee is not otherwise in the minor’s best interests.140
Third, a nomination by will precludes the parent from participating actively in the guardianship appointment process itself. The deceased parent’s voice is heard only through the language of the will, and the parent cannot advocate for, nor answer questions from the court about, her choice of guardian. This becomes especially problematic in contested matters where the deceased parent’s input could be most critical to crafting an arrangement that is in the child’s best interests.
Fourth, many people with HIV have particular reason for concern regarding their wishes being carried out in wills. The wishes of parents in non-traditional families—including gay men who are still overrepresented demographically in the HIV epidemic in the United States—have been routinely ignored or subject to greater scrutiny by courts and other decision-makers.141 This also has been true of people with HIV more generally, who are presumed to be gay and/or drug users and whose desires are stigmatized and devalued accordingly.142
Finally, even if the deceased parent’s wishes are eventually honored, it may only be after the will has been probated and a guardianship proceeding has occurred. These legal processes can take many months and result in an extended period of legal limbo, including possible foster care placement, before the child has a permanent guardian. Important schooling and medical care decisions may be delayed or forgone with potentially serious implications for the child’s health and welfare.
Inter Vivos Guardianship. Another permanency planning option for parents with HIV is to create a traditional, or inter vivos, guardianship that suspends and transfers custody and most other parental rights and responsibilities to another adult. Establishing an inter vivos guardianship typically requires the formal filing of a petition for guardianship followed by a court hearing to determine whether the proposed arrangement is in the child’s best interests.143 The petitioner usually can be a parent, proposed guardian, or the minor if over a statutorily prescribed age.144 Certain designated parties—frequently parents and other close relatives—are due notice of the proceeding.145
Relative to testamentary guardianships, inter vivos guardianships offer some planning advantages to the terminally ill parent. First, an inter vivos guardianship granted pursuant to a parent’s wishes provides the parent with the certainty that a nomination by will cannot. If there is any dispute about who should be the guardian or if the guardianship itself is contested, the parent—if healthy enough—can play an active role in the proceeding to defend her choice and protect the best interests of her child. Such involvement offers some parents the peace of mind that is not attainable via a prospective will or guardianship nomination.
Second, an inter vivos guardianship effectuates a transfer of authority that allows the guardian to assume immediate responsibility for the child. Unless limited by the guardianship order, the guardian can begin making health care, schooling, and other decisions for the child, which may provide significant relief for a terminally ill parent. In fact, with the availability of temporary or emergency guardianships in most jurisdictions, such a transition of authority can often commence within days of filing the guardianship petition.146 Significantly, the contemporaneous nature of an inter vivos guardianship also obviates the need for a future transfer of authority following an event such as the incapacity, debilitation, or death of the parent.
Unfortunately, this immediate transfer of authority is also a major disincentive for many terminally ill parents who are considering permanency planning options, most of whom are reluctant to cede any parental rights and responsibilities while they are still capable of caring for their children. For many parents, the prospect of losing control—especially when so little else in their life may feel secure—is emotionally too great to consider an inter vivos guardianship as a viable planning option. The practical implications of establishing such a guardianship, including relinquishing decision-making authority about schooling, medical care, and other child care issues, are also unacceptable to most parents, regardless of their health status.
As a result of the inadequacies of wills and inter vivos guardianships as permanency planning tools, many parents with HIV have eschewed these traditional options, often with dramatic consequences for their children.147 Fortunately, since the early 1990s, people with HIV have had an increasing number of options as states have enacted the permanency planning reforms described below.
§ 13.8 —Introduction to Standby Guardianships
This case illustrates the horrible crisis situation confronting many single custodial parents who are suffering from AIDS or some other terminal disease. Sadly, these parents must find someone to take care of their children once they are no longer able to do so. Unfortunately, traditional guardianship law presents only two choices. In order to formally grant another person parental authority while the parent is still living, the parent must relinquish his or her own authority. Testamentary guardianship, the second option, only becomes effective upon the parent’s death.
Several states have begun to offer a third alternative by adopting standby guardianship statutes. Generally standby guardianship statutes allow parents who are at substantial risk of becoming ill or disabled within a limited time period to select a “standby guardian” to take care of their children at the point when they become too ill or disabled to care for them. The parent does not relinquish any of his or her authority, but instead shares it with the standby guardian. Additionally, the parent may end the standby guardian’s authority when he or she chooses to do so.
Ada R.’s heartbreaking struggle to deal with her disease, while at the same time not turning her back on her child makes this . . . case all the more tragic. . . .
What is done in this case regarding parental rights has the potential to be very far reaching. If the spread and growth of the AIDS virus remains unchecked, it will eventually touch all families, and then every family will have an Ada or a Micah.148
In the early 1990s, in response to the inadequacy of testamentary and inter vivos guardianships as permanency planning tools for parents with HIV—as aptly described in the above passage from a recent West Virginia HIV neglect and abuse case—advocates pressed for legislative changes at the state and federal level that would better meet their clients’ needs. Of primary concern was affording parents with HIV the opportunity to maintain care, custody, and control of their children for as long as they were capable of doing so, while at the same time providing an established plan for future care in the event of parental incapacity, debilitation, or death. The mechanism advocates crafted to achieve these ends—the “standby” guardianship—is a relatively simple concept, but a significant departure from the traditional guardianship regimes in most states.149
Legislative History of Standby Guardianships. Standby guardianships are creatures of statute, born of the HIV epidemic. States have taken the lead in developing this significant innovation in guardianship law, though the federal government and the American Bar Association have recently weighed in to encourage the establishment of standby guardianship laws in all U.S. jurisdictions.
The first major state initiative to address the permanency planning needs of parents with HIV was undertaken in New York, which enacted standby guardianship legislation in 1992.150 The New York statute, which was “motivated by the AIDS epidemic and its special impact on single parents, particularly single mothers,”151 permits a parent, legal guardian, legal custodian, or primary caretaker with a “progressively chronic illness” or “an irreversibly fatal disease” to nominate a standby guardian.152 The standby guardian’s authority takes effect only upon the occurrence of a specified event, including the death, incapacity, debilitation, or consent of the parent or legal guardian.153 This basic approach has served as a model for standby guardianship laws across the country.
In 1994, Connecticut, Illinois, and Maryland established standby guardianship regimes along the lines of New York’s,154 and the following year Massachusetts, New Jersey, and North Carolina followed suit.155 By the end of 1999, six additional states—Nebraska, Pennsylvania, Virginia, Wisconsin, Arkansas, and West Virginia—had enacted standby guardianship laws.156 Minnesota enacted a standby custodian law in 2000,157 replacing its 1996 designated caregiver agreement statute which allowed the maximum duration of the caregiver’s authority to act to last one year. Although not called standby guardianship, Colorado enacted a law effective 2001 that allows a parent likely to be unable to care for a child within two years to petition for court appointment of a future guardian of the minor.158 Texas, although declining to enact a complete standby guardianship law, passed legislation in 2001 which allows a surviving parent to appoint a guardian of a minor, effective upon the parent’s incapacity or death.159 Because of their parallels with standby guardianship regimes, both the Colorado and Texas statutes are discussed in this section. In 2002, Georgia and the District of Columbia enacted standby guardianship laws.160
Including Florida—with its standby guardianship statute predating the HIV epidemic—and California—with its comparable joint guardianship provisions161—20 states and jurisdictions now provide a form of this statutory permanency planning option.162 Perhaps more importantly, these states include four-fifths of all adults and seven out of every eight children living with AIDS in the United States.163
Even in jurisdictions previously without standby guardianship laws on the books, however, the influence of this new approach has been felt. For example, in 1993, an appellate court in Illinois—in spite of the absence of an explicit statutory provision authorizing standby guardianship at that time—held that a trial court erred in denying an HIV-infected mother’s request for a standby guardian without holding an evidentiary hearing to consider the best interests of her children and the propriety of appointing a standby guardian.164 And in a strongly worded decision issued in 1998, an appellate court in West Virginia lamented the absence of a standby guardianship law in that state;165 less than a year later, the legislature enacted such a statute.166
In addition to state efforts to establish standby guardianship regimes, federal lawmakers have considered standby guardianships on a number of occasions. In response to the passage of the standby guardianship statute in her state, U.S. Congresswoman Carolyn Maloney of New York repeatedly has introduced legislation that would require states to have in effect standby guardianship laws as a condition of eligibility for federal foster care and adoption assistance.167 Although never enacted, this legislation has kept the issue of standby guardianship and the planning needs of HIV-infected parents before Congress since 1993.
In 1997, Congress adopted, and President Clinton signed, the Adoption and Safe Families Act (ASFA),168 the most sweeping federal reform of child welfare law in two decades. Included in ASFA was a “Sense of Congress Regarding Standby Guardianship,” the text of which reads:
It is the sense of Congress that the States should have in effect laws and procedures that permit any parent who is chronically ill or near death, without surrendering parental rights, to designate a standby guardian for the parent’s minor children, whose authority would take effect upon—
(1) the death of the parent;
(2) the mental incapacity of the parent; or
(3) the physical debilitation and consent of the parent.169
This “Sense of Congress” language, though without any enforcement mechanism, is otherwise verbatim the text of Congresswoman Maloney’s proposed legislation and represents the first federal endorsement of this important permanency planning tool. In June 1999, in conjunction with “Adoption 2002”—the President’s Initiative on Adoption and Foster Care—the U.S. Department of Health and Human Services issued guidelines and model legislation recommending that states “provide for the legal option of Standby Guardianship” for chronically or terminally ill parents.170
The American Bar Association (ABA) likewise recently recognized the significance of standby guardianship through amendment to the Uniform Guardianship and Protective Proceedings Act. Drafted by the National Conference of Commissioners on Uniform State Laws and approved by the ABA’s House of Delegates in 1998, § 5-202 of the Act permits parental nomination and court appointment of a standby guardian for a minor of a parent who “will likely become unable to care for the child within two years.”171 The standby guardian’s authority becomes effective upon the “appointing parent’s death, an adjudication that the parent is an incapacitated person or a written determination by a physician who has examined the parent that the parent is no longer able to care for the child, whichever occurs first.”172 Although no state has adopted the ABA’s recommended approach, and only two states apparently have responded directly to the ASFA Sense of Congress language,173 these developments signal a clear movement to make standby guardianships available to chronically and terminally ill parents in every U.S. jurisdiction.
§ 13.9 —Issues in Standby Guardianship
No two states have identical standby guardianship laws or procedures. Most standby guardianship statutes are set forth in probate codes or their equivalents,174 though they are also found in juvenile,175 domestic relations,176 and other codes.177 In crafting standby guardianship provisions, states weigh the various interests at stake and strike their own balance between the interests and needs of the custodial parent or guardian, the child, and the non-custodial parent. Since state standby guardianship laws supplement, and do not replace statutes governing guardianships, advocates will have to be mindful of both guardianship law in general and the specific standby guardianship provisions in their own states.178
Eligibility of the Parent/Custodian. In most states, eligibility to utilize standby guardianship statutes is circumscribed in one or more ways. First, some states restrict standby guardianships according to the status of the custodial adult. While most states make available standby guardianships as a planning tool to custodial parents and other legal custodians (e.g., legal guardians),179 Arkansas, Maryland, Nebraska, Texas, and Wisconsin limit them to parents only.180
Second, most states limit standby guardianships to parents/custodians who are chronically or terminally ill, though the exact formulation varies considerably by jurisdiction. The most restrictive states, Colorado, Maryland, and Wisconsin, require that the parent state that there is a significant risk that the triggering event—inability to care for the child in Colorado; incapacity or death in Maryland; and incapacity, debilitation or death in Wisconsin—will occur within two years of the filing of the petition.181 Given the wide spectrum of disease progression, clearly not all people with HIV can meet such a narrowly drawn criterion. In recognition of the counterproductive impact of unnecessarily restricting the availability of standby guardianship as a permanency planning tool in such a way, both New York and California amended their respective statutes to eliminate the “two-year requirement.”182
New York, New Jersey, and North Carolina require that the custodial parent suffer from a progressive chronic condition or an irreversible fatal illness.183 In Virginia and West Virginia, a parent must suffer from a “progressive chronic condition caused by injury, disease or illness from which, to a reasonable degree of probability, the patient cannot recover”; and West Virginia adds that such a condition must be “likely to lead to debilitation or incompetence.”184 Arkansas and Nebraska, adopting language directly from the federal ASFA, require simply that a parent be “chronically ill or near death.”185 The District of Columbia requires that the custodial parent “suffer from a chronic condition caused by injury, disease, or illness from which, to a reasonable degree of probability, the designator may not recover.”185.1 It is likely that most if not all people with HIV would be eligible to pursue standby guardianships under these standards. Eight states—Connecticut, Florida, Georgia, Illinois, Massachusetts, Minnesota, Pennsylvania, and Texas—do not restrict the availability of standby guardianships based upon the health status of the custodial parent.186
Third, of the 11 states and jurisdictions that limit standby guardianships to ill parents/custodians, many require a showing of such illness. For example, Maryland and Wisconsin—states with the “two-year requirement” described above—specify that the parent must include in a petition for standby guardianship a statement with regard to the severity of her illness and the “basis for such a statement.”187 New York and North Carolina also stipulate that the petitioner must provide the basis for a required statement regarding illness, “such as the date and the source of a medical diagnosis,” but “without requiring the identification of the illness in question,”188 and the District of Columbia has a similar requirement.188.1 Petitioners in New Jersey, Virginia, and West Virginia likewise must include a statement in the petition with regard to satisfying the required level of medical severity, but “shall not” be required to submit documentation of their medical status.189 The remaining states in which parental illness is a prerequisite to establishing a standby guardianship—Arkansas, Colorado, and Nebraska—simply are silent on the mechanism for documenting such illness.190
Eligible parents/custodians who meet the health status requirement and wish to commence the standby guardianship process can do so generally via one of two statutorily-defined mechanisms: first, by the non-judicial designation of a standby guardian, and second, through the judicial appointment by petition of a standby guardian. As described below, a majority of states with standby guardianship laws recognize appointment by designation, and almost all states permit judicial appointment by petition.
Standby Guardianship by Designation. States permitting non-judicial designation of a standby guardian generally specify the contents of and/or prescribe a recommended form for the designation.191 The typical designation process involves execution of a document naming the standby guardian, signed by the parent/custodian and witnessed by at least two disinterested adults.192 Most states requiring that the parent/custodian sign the designation permit another adult to sign on her behalf if she is unable to do so.193 The District of Columbia, Georgia, Maryland, Minnesota, Pennsylvania, and Wisconsin additionally require that the standby guardian sign the designation.194
The standby guardian’s authority to act as a guardian commences after the occurrence of a “triggering event,” the hallmark of a standby guardianship. What constitutes a triggering event varies by jurisdiction, though death, mental incapacity, and physical debilitation with consent are the three most commonly specified occurrences. Death of a parent/custodian is recognized in all standby guardianship statutes except Georgia’s as a triggering event,195 as is incapacity, which generally refers to the parent/custodian’s mental condition.196 Most states also permit “debilitation”—typically defined as physical incapacity—in conjunction with the concurrent consent of the parent/custodian to qualify as a triggering event.197
More than half of the states permit consent alone as the triggering event.198 However, Maryland, New York, Virginia, and West Virginia do so only in the context of judicially appointed standby guardians, apparently preferring the heightened scrutiny provided by the petition process.199 Minnesota and Pennsylvania explicitly permit the designation and appointment of different standby guardians for different triggering events.200
In addition to establishing initial eligibility based upon the parent/custodian’s health status as described above, many states also require that the standby guardian provide subsequent documentation of the triggering event that commences her authority. This is true regardless of whether the standby guardianship is established through designation or petition. Maryland, New Jersey, New York, North Carolina, and Wisconsin, for example, require that a standby guardian provide a written statement from a physician describing, among other things, the “cause and nature” of the parent/custodian’s incapacity or debilitation as well as its extent and probable duration.201 Where the triggering event is death, most statutes that address this issue require the filing of a death certificate.202
All states permitting non-judicial designation of a standby guardian except Texas, with its similar non-judicial guardianship appointment, limit the duration of the standby guardian’s authority once the triggering event has occurred. Most states require a designated standby guardian to petition for judicial appointment within a statutorily prescribed period of time ranging from 60 days in Minnesota, New York, and Pennsylvania to 180 days in Maryland and Wisconsin.203 New Jersey also authorizes the designated standby guardian to act for up to six months, but the time begins running from the original date of designation, not the date of the triggering event.204 Connecticut, Virginia, and West Virginia require petition for a regular guardianship following a triggering event authorizing a designated standby guardian to act. The standby guardian has 30 days to file in Virginia and West Virginia,205 90 days in the District of Columbia,205.1 from 90 days to one year in Connecticut, depending on the nature of the triggering event,206 and four months in Georgia.206.1
The advantages of nominating a standby guardian by designation are numerous. Because judicial petition and approval are not required, the designation process may be less intimidating for the parent/custodian and therefore more likely to be something she will consider as a permanency planning tool. Appointment by designation is also clearly more private and often less complicated than the petition process, again increasing the overall likelihood that a parent/custodian will avail herself of the option.207
In addition, a designation establishes a quasi-legal relationship between the child and the standby guardian prior to a judicial hearing, providing the standby guardian with the opportunity to demonstrate her capability as a guardian should a triggering event occur and eventual judicial appointment become necessary. In fact, the District of Columbia, Minnesota, New Jersey, and Pennsylvania have established a rebuttable presumption that in a judicial proceeding for a standby guardianship, a previously designated standby guardian shall be considered capable of serving as a guardian.208
Finally, even if the parent intends to pursue a standby guardianship by petition, a written standby guardianship designation—like a will—is an important backup document in the event of an occurrence that might trigger its use. For this reason, many advocates in states with all three options advise clients to consider testamentary nomination, nomination by designation, and appointment by petition as points along the permanency planning continuum.
Standby Guardianship by Petition. With the exception of Connecticut, all states with standby guardianship statutes provide for the judicial appointment of a standby guardianship following petition by an eligible party.209 The contents of the petition are often prescribed by statute and typically require specificity with respect to which triggering event will effectuate the standby guardian’s authority and information demonstrating the petitioner’s eligibility to establish a standby guardianship.210 Some states provide little or no detail as to the contents of the petition or refer to general guardianship provisions that must be followed.211 In addition, even where the petition process is clearly delineated by statute, local court rules or procedures may vary and must be considered prior to filing a petition.
More than half of all states that permit standby guardianship by petition expressly excuse a parent/custodian from appearing at a hearing if she is medically unable to do so.212 The general caveat in those states is that appearance may be required upon motion with good cause shown.213 North Carolina does not require an appearance by a parent/custodian who is unable to attend unless the clerk determines that “the interests of justice” require it and the petitioner can appear “with reasonable accommodation.”214
As described above, most states limit standby guardianships to terminally ill parents or custodians and require some showing to justify eligibility, but minimize the specificity required in such petitions. Several states go one step further and circumscribe the potential for harmful public disclosures in court proceedings. Massachusetts, for example, requires that all documents filed in connection with a petition for the appointment of a “proxy” (standby guardian), such as affidavits and reports, be segregated and not available for inspection except upon court order for good cause shown.215 New York and New Jersey limit disclosure of the designation or appointment to: (1) the parent/custodian who appointed the standby guardian, (2) the designated or appointed standby and/or alternate standby guardian; and (3) any other person directed by the court.216
Once the standby guardian is judicially appointed, almost all jurisdictions require notice to the court following the occurrence of the triggering event, though the time frame for such notice and the level of judicial scrutiny vary considerably by state. Arkansas mandates that notice to the court that approved the petition for the standby guardianship must be provided “immediately” following a triggering event, though its statute does not further define that term.217 Florida requires a subsequent petition to the court within 20 days of the standby guardian’s assumption of duties for “confirmation of appointment.”218 Colorado requires the guardian to file an acceptance of the appointment within 30 days of the triggering event.219 Virginia and West Virginia allow 30 days, but require the standby guardian to commence a traditional guardianship or other custody proceeding within 90 days if the triggering event was the death of the parent and “promptly” after the occurrence of other triggering events.220 Illinois and New Jersey each permit 60 days, though Illinois requires the filing of a petition for traditional guardianship within that period, while New Jersey—like Florida—requires judicial “confirmation.”221 Maryland, New York, North Carolina, and Wisconsin all require that written proof of the triggering event be filed within 90 days of its occurrence.222 Massachusetts also vests the standby guardian with the authority to act for up to 90 days, but requires the filing of a petition for a traditional guardianship within that period.223 Minnesota and Pennsylvania, either through oversight or foresight, do not require further notice to the court following its initial appointment of a standby guardian.224 In one section of its standby guardianship law, the District of Columbia sets forth that a judicially approved standby guardian becomes a legal custodian upon filing of proof of the triggering event,224.1 where another section indicates the standby guardian’s authority as legal custodian becomes effective as of the occurrence of the triggering event.224.2 In the event of the death of the designator, the standby guardian must file a copy of the death certificate.224.3 In Georgia, a standby guardian is required to petition for a guardianship within four months of the health determination. However, if the parent dies prior to a court order of guardianship, the standby guardianship terminates. If the parent dies after the order of guardianship is entered, the order terminates “in favor of any testamentary designation of a guardian,” or if there is none, of a new guardianship petition.224.4
Standby guardianship by petition has several advantages relative to designation alone. Perhaps most importantly, the parent/custodian who appoints a standby guardian by petition is much more likely to be capable, both physically and mentally, of participating actively in the appointment process. This is particularly important if the eventual judicial proceeding is contested. In fact, the standby guardian who assumes temporary authority subsequent to a designation may opt to forgo the required judicial process following a triggering event if it seems too difficult or contentious, leaving the child precisely in the legal limbo standby guardianship laws are intended to prevent.
In addition, a standby guardianship by petition is much more permanent than a guardianship established by designation. As described above, a designated standby guardian can act at most for one year following a triggering event; in a majority of states the authority is limited to three months or less before requiring judicial approval. By contrast, a judicially appointed standby guardianship (or regular guardianship depending on the state) can provide virtually open-ended care for the child. The relative certainty and longevity of appointment by petition may be very appealing to parents otherwise facing uncertainty and mortality.
The Interests of the Child. The interests of the minor in standby guardianships are protected in a number of ways, though there are state variations. First, some statutes reiterate that the judicial standard of review for standby guardianship petitions is the best interests of the child.225 Even in states without reference to this standard in the standby guardianship statute itself, the background regime (and the practice of judges familiar with traditional guardianships) places primacy on the best interests of the child.226 For example, in a standby guardianship case balancing the wishes of the parent and interests of the child, a New York Surrogate Court held that in spite of a strong presumption in favor of the wishes of the HIV-infected parent’s choice of standby guardian, the court nevertheless had the discretion not to appoint the guardian when it clearly and convincingly was not in the child’s best interest to do so.227 At least three states—Colorado, New Jersey, and Wisconsin—explicitly require the court to consider the preferences of the minor in establishing a standby guardianship.228 Again, even without a direct mandate in the standby guardianship statute itself, states often incorporate such a requirement by reference to the traditional guardianship regime.229
Second, several states specify that notice of the standby guardianship proceeding be provided to a minor. Colorado and Virginia require notice to minors age 12 and older;230 Illinois, Nebraska, New Jersey, and West Virginia require such notice to minors age 14 and older.231 New York also requires notice to minors over age 14, though under the general statutory framework outside of the standby guardianship law.232 In addition to the notice due to older minors, several states grant the court discretion to appoint a guardian ad litem to represent the minor in a standby guardianship proceeding.233 In Virginia and West Virginia, such appointment is mandatory if the petitioner is someone other than a parent of the child.234
Finally, standby guardianships are designed to afford parents and custodians a continued role in their child’s care and custody pending a triggering event. Prior to such an occurrence, the parent/custodian retains sole authority to care for the child. Even after a triggering event, most jurisdictions specify that the standby guardian’s authority to act on behalf of a child does not supplant, but is concurrent with, that of the parent/custodian.235 In fact, Colorado, Maryland, New York, North Carolina, and Wisconsin require that the standby guardian provide notice to the incapacitated parent upon commencement of the standby guardian’s authority.236 The District of Columbia, Pennsylvania, and Minnesota have language with regard to the importance of maintaining the relationship between the child and parent after the triggering event.237
The Interests of the Non-Custodial Parent. Even though a guardianship, unlike an adoption for example, does not terminate parental rights, one particularly thorny challenge in the development and implementation of standby guardianship laws has been to protect the interests of non-custodial parents. Given the demographics of the HIV epidemic in the United States, the designating or petitioning parent is typically a woman with one or more children.238 In some cases, one or more non-custodial fathers are involved who have various levels of connection and interaction with the children. Sometimes, the father is deceased, incarcerated, or otherwise not a participant in any meaningful way in child rearing; often the reality is even more complex.239
States have taken a number of different approaches to crafting standby guardianship regimes that balance the rights of the non-custodial parent with the custodial parent’s need to plan for the future care of her children. Most state efforts have focused on two points in the process where the interests of the non-custodial parent must be taken into account. First, many states specify if and how a standby guardianship can proceed without the consent of the non-custodial parent. Second, states often detail the extent and form of notice that is due the non-custodial parent regarding the standby guardianship proceeding.
Most states require the consent of both living parents in designating or petitioning for a standby guardianship, though many also permit exceptions under certain circumstances. Florida’s statute appears to be among the most restrictive, with the only exception to the consent requirement being the death of the other parent.240 The statute does not allow one parent to proceed alone, even if the other parent’s rights have been terminated, as long as he is alive and withholds consent.241 In its relevant guardianship statute, Texas confers the right to appoint a guardian only to a surviving parent.242 Connecticut, Illinois, Maryland, Nebraska and Pennsylvania require consent unless the other parent’s rights have been terminated.243
Even if parental rights have not been terminated, petitioners in some states are permitted to proceed without the consent of the non-custodial parent on other grounds. For example, in Illinois, Maryland, Minnesota, Pennsylvania, and Wisconsin, consent of the other parent is waived if his whereabouts are unknown.244 Colorado, Illinois, Minnesota, Pennsylvania, and Wisconsin make further exception and waive the consent required of parents who are not willing or able to care for the child,245 though the Illinois statute establishes a presumption—rebuttable by a preponderance of the evidence—that a minor’s parent is fit to provide such care.246
Notice requirements to non-custodial parents also vary by jurisdiction. States, whether or not they require the consent of the non-custodial parent to commence a standby guardianship proceeding, generally require that notice of the proceeding be provided to the parent.247 Again, there are exceptions: for example, Minnesota, New Jersey, and Pennsylvania waive notice to non-custodial parents whose rights have been terminated;248 New York waives such notice to “a parent who has abandoned the infant [minor] or is deprived of civil rights or divorced from the parent having legal custody of the infant.”249 North Carolina allows the clerk discretion to waive notice and the non-custodial parent himself can waive such notice.250 Minnesota, New Jersey, Pennsylvania, and Wisconsin also provide for special notice—via state court rules governing such notice—to be served on parents who cannot otherwise be located.251 The District of Columbia requires “reasonable efforts” to locate any parent,251.1 while Georgia requires a “diligent search.”251.2
Several standby guardianship statutes specify timelines with regard to notice to non-custodial parents. Virginia and West Virginia require that such notice be provided “promptly” and provide detail as to the content of notice and the form of service.252 Illinois requires notice to the non-custodial parent not less than 3 days prior to a hearing unless excused by the court for good cause;253 Wisconsin requires that such notice be provided at least 7 days in advance of the hearing.254 In Minnesota and Pennsylvania, notice to the non-custodial parent must be provided within 10 days of the filing the petition for standby guardianship; New Jersey requires notice within 30 days.255
Although guardianship proceedings generally do not permanently affect parental rights and can be modified and set aside if doing so is in the child’s best interests,256 several states reiterate this principle in their standby guardianship statutes. In North Carolina, a written custody claim presented by a parent stays the standby guardianship proceeding pending filing of a custody complaint.257 If such a complaint is filed within 30 days of the claim, the standby guardianship petition must be dismissed.258 In Virginia and West Virginia, a hearing is required prior to any order approving the standby guardianship if there is another known parent who requests it within 10 days of the date that notice of the filing was sent.259 The District of Columbia requires a hearing where a parent requests it within 20 days of receiving notice.259.1 Further, a child’s parent may petition the court which approved the standby guardianship at any time following such approval for review of whether the arrangement is in the best interests of the child.260
Termination or Suspension of the Standby Guardianship. In addition to setting aside a guardianship in the best interests of the minor, states generally provide as many as four ways to terminate or suspend the authority of a standby guardian. First, most states expressly permit the parent/custodian who designated or nominated the standby guardian to revoke such authority.261 The details vary between revocation of authority granted via a designation or a petition, and between revocation before or after the triggering event, but revocations generally must be in writing and filed with the court.262 Most states permitting revocation also require that notice be provided to the standby guardian, though the District of Columbia, Virginia, and West Virginia permit revocation of a designation via execution of a subsequent inconsistent designation with no requirement of notice to the original designee.263
Second, about half of all states provide an explicit mechanism for the standby guardian to renounce the designation or appointment.264 Again, there are designation/petition and pre/post-triggering event variations, but typically the standby guardian must execute a written renunciation and provide notice to the parent/custodian and the court. New York permits renunciation, but only prior to commencement of the standby guardian’s authority.265 Like other states, Virginia and West Virginia distinguish between renunciation pre- and post-filing, but require personal service of notice on the parent if the renunciation occurs after the petition has been filed.266 Nebraska permits a standby guardian to resign, but the guardianship is not terminated until approved by the court.267
Third, several states set forth the basis for the court that granted the standby guardianship to rescind its order. Maryland, New York, and Wisconsin permit, though do not require, the court to rescind the standby guardianship if it finds that the statutory requirements are no longer satisfied.268 In North Carolina, the court clerk—though apparently not on its own motion—”shall rescind” the guardianship if it finds that the requirements are no longer met.269 A guardianship in Texas terminates upon a court’s finding that “the surviving parent is no longer an incapacitated person.”270 In Virginia and West Virginia, rescission by the court is mandatory if the parent/custodian no longer meets the statutory definition of a “qualified parent” as defined by the statute.271 The District of Columbia has a similar provision.271.1
Finally, and importantly, some states describe under what circumstances the authority of the parent/custodian is to be restored vis-à-vis the standby guardian. In Connecticut, the standby guardian’s authority ceases if the specified contingency no longer exists.272 In the District of Columbia and Massachusetts, the standby guardian’s authority reverts to inactive if the parent withdraws consent or a licensed physician determines that the parent is no longer incapacitated.273 In Minnesota and Pennsylvania, the authority of the standby guardian is also rendered “inactive” upon evidence from a licensed physician of the restored capacity of the parent/custodian.274 In North Carolina and Wisconsin, medical evidence of restored capacity or ability by a licensed physician suspends the authority of the standby guardian and must be filed with the court, though the guardianship order remains in effect pending subsequent incapacity or debilitation.275
Other Limits on Standby Guardianships. In general, guardianship regimes distinguish between guardianships of the “person”—involving care, custody, control, and education of a minor—and guardianships of the “estate”—which include management of a minor’s personal and real property. All states with standby guardianship provisions either explicitly or implicitly authorize them for the person; most states appear to authorize standby guardianships of the estate as well.276 Virginia and West Virginia require that the petition state whether the standby guardianship is for the person and/or estate and presume that a standby guardianship by designation includes the estate unless specified otherwise.277 Though other states may require it under their general guardianship provisions, the standby guardianship statutes in Illinois, Maryland, Minnesota, North Carolina, and Pennsylvania stipulate that a bond may be required of the standby guardian of the estate.278
§ 13.10 —Joint and Co-Guardianship
Most states currently permit the appointment of two or more “joint” or “co-guardians” of a minor under their traditional guardianship regimes. The typical multiple guardian scenario involves appointment of a couple to care for the child of a relative or a friend. The authority of joint/co-guardians commences upon judicial appointment and generally is exercised concurrently. Although joint/co-guardianship regimes were not designed as permanency planning tools for terminally ill parents—for example, historically such provisions have not contemplated that one of the appointed guardians is a custodial parent—neither do they explicitly preclude such a possibility. Recent reforms in California and Connecticut expressly have extended these traditional guardianship procedures to facilitate permanency planning.
Joint Guardianship in California. In response to the needs of terminally ill parents generally and parents with HIV in particular, the California legislature amended its existing joint guardianship statute in 1993.279 Effective January 1, 1994, California law permits court appointment of a person or persons nominated by a terminally ill parent to serve, together with the parent, as joint guardians of the minor.280 During her lifetime, the terminally ill parent shares legal rights and responsibilities for her child with the joint guardian appointed by the court; after her death, the surviving guardian retains custody and responsibility for the child.281
Joint guardianship proceedings are commenced when a petition is filed by the parent, the proposed guardian, the proposed ward (if he is 12 years or older), or any relative or person on behalf of the minor.282 Although the custodial parent does not have to be the petitioner, she must nominate the proposed joint guardian—for example, in a writing accompanying the petition—for the joint guardianship to be considered.283 “Custodial parent” in the guardianship context in California refers to the parent who has been awarded sole legal and physical custody of the child in another proceeding. If no operative custody order exists, then the custodial parent is the parent with whom the child resides.284 If the child resides with both parents, then they are both custodial parents, either of whom may nominate the proposed joint guardian.285
A probate court in California may establish a guardianship whenever it appears “necessary or convenient” to do so.286 A guardianship is “necessary or convenient” when it is in the child’s best interests.287 The court may grant a joint guardianship “in its discretion” when a custodial parent has been diagnosed as having a “terminal condition.”288 California’s joint guardianship statute defines terminal condition as “an incurable and irreversible condition that, without the administration of life-sustaining treatment, will, within reasonable medical judgment, result in death.”289 The terminal condition must be documented by a declaration from a licensed physician.290 Although the law originally required that the terminal condition would be expected to result in death within two years, effective January 1, 1996, the statute was amended to remove the two-year limit.291
Generally, if both parents are still living—regardless of whether they are custodial or not—both must consent before a guardian may be appointed.292 Even if the non-custodial parent refuses to consent or otherwise objects to the joint guardianship, however, the court may establish the joint guardianship if granting custody to the objecting parent would be “detrimental” to the minor.293
Like traditional and standby guardianships, a joint guardianship does not permanently terminate the rights of either parent. In many cases, however, only one parent will be named as a joint guardian, and the custodial rights of the other parent will be suspended for the period of the guardianship. If the petition is granted, the court may order the joint guardians to accommodate reasonable requests for visitation from the non-custodial parent, if such visitation serves the child’s best interests. The frequency, duration, and nature of such visits are within the discretion of the court.294
During the lifetime of the parent, the joint guardians (the parent and the newly named guardian) share responsibility for the minor’s “person,” including the child’s care, custody, control, and education.295 For example, the guardian and the parent may determine where the ward is to live, and must inform the court of any change of address and must obtain court approval before moving the ward to another state.296 Joint guardians may also give or withhold consent for the ward’s medical treatment.297 As a formal legal matter, the joint guardian and the parent must “concur” before exercising custodial powers.298 As a practical matter, however, the joint guardian and parent often agree that the parent will continue to have primary control over the upbringing of the minor for as long as she is capable of doing so.299
Any interested person may petition the court to terminate the joint guardianship whenever the guardianship is no longer necessary, or when it is in the ward’s best interest to terminate.300 The joint guardianship automatically terminates upon the majority, death, adoption, or emancipation of the ward.301
For a parent with HIV, the advantages of a joint guardianship are significant. First, the process allows the parent to participate during the formal appointment process—not just during the nomination process as in a will or a standby guardianship designation. As previously discussed, this involvement is particularly important when the guardianship might be contested or where the active voice of the parent is otherwise important in the judicial decision-making process.
Second, once established, a joint guardianship fosters a more formal working relationship between the joint guardian, the parent, and the child. This relationship enhances the continuity of care for a child, both psychologically and logistically. Such continuity is especially important in light of the strong likelihood of eventual parental incapacity, debilitation, or death. Similarly, since court appointment of the joint guardian is made in advance of a triggering event, there is no need to identify the point at which custody transfers. Among other things, this eliminates the need for future court confirmation.302
Co-Guardianship in Connecticut. In 1996, Connecticut amended its guardianship statute explicitly to permit a parent to be appointed along with another adult as co-guardians of a minor.303 Connecticut’s approach has much in common with California’s joint guardianship amendments and some important differences.
Like California, Connecticut requires judicial appointment of the co-guardians following petition by a parent or guardian.304 Connecticut does not restrict the statute’s provisions to parents/custodians who suffer from a terminal illness, as California does, though Connecticut appears to require that the petitioner be the sole surviving parent or guardian before proceeding.305
In Connecticut, the court may order that the appointment of the co-guardians take effect immediately, as it does in California. Significantly, the court may also order that the appointment commence “upon the occurrence of specified contingency, including, but not limited to, the mental incapacity, physical debilitation or death” of the nominating parent or guardian.306 This provision makes Connecticut’s co-guardianship mechanism more closely resemble other states’ standby guardianship laws. Like most standby guardianship regimes, if the authority is to commence upon a triggering event,307 Connecticut requires that the appointed co-guardian provide the court with written notice of the event; unlike many such regimes, however, the authority of the co-guardian in Connecticut takes effect only after such notice is provided to the court, not after the triggering event itself.308
The probate court is required to hold a hearing within 30 days of receiving an application for co-guardianship.309 Notice of the hearing is due “all parties in interest known by the court.”310 At least 10 days prior to the hearing, notice also is due the minor if she is over age 12.311 The statute delineates the four criteria the probate court should consider when appointing co-guardians, including: (1) the ability of the co-guardians to meet the daily needs of the minor; (2) the wishes of the minor if she is over the age of 12 or is “of sufficient maturity and capable of forming an intelligent preference”; (3) the relationship between the child and the prospective guardian; and (4) the minor’s best interests.312
Once the appointment of the co-guardian is effective, whether immediately or after a triggering event, the authority of the parent/guardian and the co-guardian is concurrent.313 Unlike California, however, co-guardians in Connecticut are authorized to exercise powers independently.314 Should a dispute arise between the parent/guardian and the co-guardian, the matter may be submitted to the probate court for resolution.315 Upon the death of the parent/guardian, the co-guardian becomes the sole guardian without further court involvement.316
The California and Connecticut approaches are significant for at least two reasons. First, though they appear more narrowly drawn than standby guardianship regimes, in practice they offer parents with HIV an equally attractive permanency planning option. Second, and related, although some states may be reluctant to enact “new” guardianship options such as standby guardianships, they may be more willing to modify existing joint or co-guardianship provisions of comparable importance for parents with HIV.
§ 13.11 —Powers of Attorney and Other Private Designations
In addition to wills and guardianships of all types, there are other private permanency planning options for parents with HIV to consider. In all states, competent adults can execute powers of attorney authorizing a designated agent to act on their behalf; in some states, this includes the ability temporarily to delegate parental responsibilities. States also have begun creating additional mechanisms—contemporaneously with the guardianship innovations described above—for parents who are trying to ensure that health care, schooling, and other decisions are made on behalf of their children. This section discusses the availability and desirability of using powers of attorney and other recently authorized private designations as planning tools for parents with HIV.
Powers of Attorney. Powers of attorney are written instruments in which one person—the “principal”—authorizes another individual—the agent, or “attorney in fact”—to perform specified acts under certain conditions. Derived from the common law of agency, powers of attorney establish a fiduciary relationship between the principal and the agent. Historically, this contractual relationship has been used to facilitate the management of business on behalf of the principal.317 More recently, powers of attorney have been extended for use in health care planning318 and in limited permanency planning.319
The form and content of valid powers of attorney are typically prescribed by statute, as are execution and recording requirements, if any.320 A power of attorney may be terminated in several ways, including, but not limited to: revocation by the principal, renunciation by the agent, or by the death of the principal.321 Termination generally requires notice to all affected parties, including any that rely on the authorization.322
Two important characteristics of powers of attorney—both deriving from their development at common law—limit their utility as permanency planning tools. First, until relatively recently, powers of attorney were invalid upon the incapacity or death of the principal, rendering them useless as a means of prospective planning for such events. Second, powers of attorney typically have not been used to transfer parental authority, a right that was not assignable under common law.
At common law, a power of attorney was valid only as long as the principal maintained the capacity to contract.323 By operation of law, incapacity or death revoked the delegated authority and voided all subsequent acts taken by the agent on behalf of the principal.324 The enactment of the Uniform Durable Power of Attorney Act of 1979 (UDPAA) and the Model Health-Care Consent Act of 1982 and successor acts—which have been adopted in one form or another by virtually every jurisdiction in the United States—partially addressed these limitations.325 The UDPAA, for example, permits the authority of the agent: (1) to survive the incapacity of the principal, and (2) to remain valid if exercised in good faith and without knowledge of the death of the principal.326 While these developments have made the use of powers of attorney more attractive as financial and health care planning tools for people with HIV themselves, they neither explicitly authorize nor apparently even contemplate the use of powers of attorney as permanency planning tools for parents.
The Uniform Guardianship and Protective Proceedings Act (UGPPA) of 1982, however, expressly addresses the planning needs of parents through the use of powers of attorney. Under the UGPPA, “A parent or guardian of a minor or incapacitated person, by a properly executed power of attorney, may delegate to another person, for a period not exceeding 6 months, any power regarding care, custody or property of the minor child or ward, except the power to consent to marriage or adoption of a minor ward.327 The commentary accompanying the provision indicates it is available if a parent or guardian becomes ill.328
The significance of the UGPPA provision is that it authorizes the delegation of parental powers via a private designation that does not require court intervention, and at least 16 states have adopted the provision in one form or another.329 Twelve states—Arizona, Idaho, Maine, Michigan, Minnesota, Montana, Nebraska, New Jersey, New Mexico, North Dakota, Oregon, and Utah—limit the duration of the delegation to the UGPPA recommended 6 months.330 Alabama, Alaska, and Colorado permit the delegation to remain in effect for up to one year.331 Indiana allows the delegation to be effective 60 days.332 For parents with HIV living in these jurisdictions—especially in the states otherwise without standby guardianship provisions or their equivalents—these reforms offer a modest planning option.
Unfortunately, the few courts that have considered the scope of power of attorney parental delegation statutes—not including any involving people with HIV—have construed them narrowly so as not to establish a guardianship relationship between the authorized person and the child. For example, an appellate court has held that Arizona’s parental delegation statute permits “an authorization for a temporary non-guardianship arrangement” only.333 The court—in denying the assertion of guardianship rights by maternal grandparents in a dependency matter in spite of their designation as such in an otherwise valid power of attorney executed by the children’s sole surviving parent—distinguished the power of attorney delegation from a testamentary nomination, suggesting that the latter could establish a guardianship sufficient to overcome allegations of dependency while the former could not.334
A Michigan appellate court similarly held that the partner of a deceased custodial mother lacked standing as a guardian to contest the biological father’s petition for custody of two children, notwithstanding the mother’s execution of a power of attorney delegating parental authority to the partner and a will nominating her as the children’s guardian.335 The court went on to state that its reversal on the standing issue—which left the two children in the custody of their father indefinitely—would have no effect on the partner’s standing should she subsequently be appointed guardian in a court proceeding.336
In a development related to the parental delegation statutes, Ohio amended its durable power of attorney statute in 1996 to permit a principal to nominate a guardian for her minor children in such a document.337 Unfortunately, the nomination via a durable power of attorney is for “consideration by a court” only if a guardianship proceeding subsequently is commenced.338 In other words, one of the most significant advantages of executing a power of attorney—that the authority it delegates commences without judicial approval—is not available when the delegated authority is parental. Thus, the power of attorney nomination permitted in Ohio is more analogous to a nomination by a will or other writing.339
On the other hand, the Ohio approach is an improvement over the power of attorney statutes in states without the UGPPA parental delegation provision described above. The guardian nominated in a durable power of attorney is one of the enumerated persons who may later petition for guardianship on behalf of the minor.340 In addition, unlike a nomination by will that can be considered only after the death of the parent, the nomination by a power of attorney can be invoked upon the parent’s incapacity or debilitation, thus increasing the opportunity for earlier and better continuity of care for the child.
States universally have recognized the importance of powers of attorney as important financial and health care planning tools for adults themselves, yet they have not embraced fully the extension of this concept to planning for the future care of children. More widespread enactment of the UGPPA provision permitting temporary parental delegation—and more expansive judicial interpretation of the authority conveyed—would be a significant step in that direction.
Other Private Designations. Although most jurisdictions do not permit the private, unsupervised transfer of parental authority that might otherwise be possible via a power of attorney, several states have undertaken other statutory reforms permitting parents and guardians to delegate partial authority under certain circumstances.
Since the early 1990s, several jurisdictions have prescribed a legally binding statutory form that parents can use to authorize other adults to consent to health care for a child.341 For example, the District of Columbia’s “Authorization for Medical Consent for a Minor by an Adult Caregiver” statute—whose enactment in 1993 was motivated specifically by the needs of HIV-affected families—permits a parent, legal guardian, or legal custodian to authorize an adult in whose care a minor has been entrusted to consent to medical and dental care.342 The authorization must be in writing and signed by the authorizing adult, and if executed pursuant to the statute must be honored by health care facilities and practitioners.343
The authority conveyed under the District of Columbia Act is revocable at will by the authorizing adult “unless other terms are agreed to by the parent, legal guardian, or legal custodian and the person to whom authority is being conveyed.”344 Although the intent of the statute appears to be that the authorization is only temporary, there is no prescribed limit to its duration.345 Nevertheless, the statute is quite clear that the authorization is not a substitute for a protection proceeding, nor is it binding on any future custody proceeding.346
North Carolina’s “Authorization to Consent to Health Care for Minor” statute, effective January, 1, 1994, resembles the District of Columbia’s approach in permitting authorization of a health care agent for a minor child of virtually unlimited duration.347 However, North Carolina’s statute is more narrowly drawn in a number of ways. For example, only a custodial parent can execute such an authorization in North Carolina.348 In addition, though she may otherwise grant full or limited authority to the designated agent, she may not authorize an agent to consent to withholding or withdrawal of life sustaining procedures from the child.349
North Carolina also is more explicit than the District of Columbia about the events resulting in termination of the authorization, including: (1) a specified ending date (if any); (2) if the child reaches 18 or is emancipated; (3) upon termination of the custodial rights of the parent who executed the authorization; (4) at any time by the parent who made the authorization by written revocation, subsequent inconsistent authorization or “any other manner in which the custodial parent is able to communicate the parent’s intent to revoke”; or (5) during any period in which there is a disagreement between two or more agents, or an agent and a parent, whether custodial or not.350 Like durable power of attorney statutes generally, North Carolina’s law expressly provides that the authority granted to the health care agent shall survive the subsequent incapacity—physical or mental—of the custodial parent.351
Delaware’s “Affidavit of Establishment of Power to Relative Caregivers to Consent to Medical Treatment of Minors” statute, effective July 1999, permits a relative caregiver to consent to medical treatment on behalf of a minor.352 To exercise such authority, the caregiver must be in possession of a valid affidavit whose contents and execution requirements—including the signed consent of the minor’s parent, legal custodian or guardian if available—are established by statute.353 As in the District of Columbia, health care providers generally must honor the caregiver’s affidavit and are indemnified against liability for their actions in good faith reliance upon it.354
Unlike the potentially open-ended authorizations permitted by the medical consent statutes in the District of Columbia and North Carolina, the Delaware affidavit is valid for a maximum of one year.355 The delegated authority terminates by operation of law if the minor no longer resides in the relative caregiver’s home or can be revoked by the parent, custodian, or guardian with notice to any health care provider who has relied upon the affidavit in providing care to the minor.356 In addition, the caregiver’s authority to consent to medical care can be superseded by a decision of the parent, custodian, or guardian.357
These statutes, especially in Delaware, a state that permits neither standby guardianship nor parental delegation via powers of attorney, are important mechanisms for parents with HIV to plan for the provision of health care to their children. At the same time, several other states have begun permitting private designations that transfer parental authority beyond the realm of health care decisions.
For example, Louisiana’s “Provisional Custody by Mandate” was added by statute in 1992, and permits a parent or guardian (“tutor/tutrix”) to authorize another adult “to provide for the care, custody and control of a minor child.”358 The authority granted can include medical care, school enrollment, discipline “in such reasonable manner as may be necessary for his proper rearing, supervision and training,” or “other such acts as may be necessary for the shelter, support and general welfare of the child.”359
The duration of “provisional custody” is limited to a maximum of one year, and can be terminated upon: (1) revocation by either the parent or tutor/tutrix; (2) the resignation or renunciation of the agent; (3) the death of either parent or tutor/tutrix (15 days thereafter); or (4) the qualification of a court-appointed guardian.360 The suggested statutory form for provisional custody by mandate states that revocation or termination of the mandate is not effective as to a third party unless that party has actual knowledge thereof.361 The form further suggests that third parties may rely on the authority of the form, with a hold harmless clause for those who do.362
Louisiana’s “Non-Legal Custodian’s Affidavit” statute enacted in 2001 added to the state’s conferring upon caregivers authority in certain areas.363 The law gives a non-legal custodian authority to consent to or refuse medical or educational services for a minor child in the non-legal custodian’s physical custody by the execution of an affidavit. The suggested affidavit form and content is contained within the statute.364 It does not require the consent of the parent or other legal custodian, but any decision by the caregiver authorized by the statute can be superseded by a contravening decision of a parent or legal custodian, if the parent/custodian’s decision “does not jeopardize the life, health, safety, or welfare of the child.”365 The affidavit terminates after one year or when the child ceases to live with the non-legal custodian.366 Service providers relying upon the affidavit who are unaware of any parent or legal custodian’s wishes are indemnified from liability provided that they rely in good faith upon the caregiver’s affidavit.367
The forerunner to Louisiana’s consent statute for non-legal custodians, California’s “Caregiver’s Authorization Affidavit” statute, enacted effective January 1, 1994, allows the caregiver of a minor child in California to execute a document that confers upon the caregiver the authority to make certain decisions on behalf of the child.368 The form and content of the affidavit, which also can be valid for a maximum of one year, are prescribed by statute.369
A non-relative caregiver who executes such an affidavit may enroll a child in school and consent to “school-related medical care” on the child’s behalf.370 A relative caregiver of a minor has the same rights as a guardian to make medical and dental care and decisions on behalf of the child.371 The statute was amended in 1996 to include mental health treatment within the definition of medical care.372
As with Louisiana’s non-legal custodian’s consent statute, an unusual feature of California’s approach is that the affidavit does not require the consent of the parent or other legal custodian.373 The authority of the caregiver, however, can be superceded by any contravening decision of the parent/custodian as long as such a decision does not endanger the life, health, or safety of the child.374 As with the District of Columbia and Delaware medical consent statutes and the Louisiana medical and educational consent statute, absent actual knowledge of the contrary wishes of a parent/custodian, the California law indemnifies from civil and criminal liability health care providers who rely in good faith on a caregiver’s authorization affidavit.375
Though less ambitious than the standby and joint/co-guardianship regimes developed in many states, these designation statutes—both for health care in the District of Columbia, North Carolina, and Delaware, and for broader transfers of parental authority in Louisiana and California—offer significant opportunities for parents with HIV and their families to plan for the care of children, especially during periods of physical or mental incapacity.
§ 13.12 —Future Trends in Voluntary Permanency Planning
Standby guardianship laws have been the single most significant development in the on-going efforts to meet the permanency planning needs of parents with HIV. Their increasing availability—and every indication is that more states and jurisdictions will follow the lead of the 20 that have standby guardianship provisions or their equivalents—is quietly revolutionizing the concept of guardianship across the country. The additional permanency planning innovations described above, including joint and co-guardianships, and temporary delegation of parental authority via powers of attorney and other private designations, likewise have improved the options available to parents with HIV. New ideas and further developments to address the growing needs of terminally ill and low-income parents and their families continue to proliferate.
For example, one commentator has recently argued for statutorily authorized concurrent guardianships,376 an extension of joint and co-guardianship reforms. Under the proposed regime, all families with single parents could establish legally-recognized redundant caregivers for children without either durational limits or the requirement of court approval.377 The impetus of the proposal is both to increase the number of persons eligible to utilize these more responsive tools and to reduce some of the disincentives inherent in mechanisms requiring judicial involvement.
In addition, effective January 1, 2000, Illinois became the first state to authorize standby adoption,378 an extension of the standby guardianship concept to the adoption arena. The amendments to the Illinois Adoption Act define a standby adoption as “an adoption in which a terminally ill parent consents to custody and termination of parental rights to become effective upon the occurrence of a future event, which is either the death of the terminally ill parent or the request of the parent for the entry of a final judgment of adoption.”379 The amended act sets forth forms and provisions for the entry of judgment in a standby adoption.380
Both concurrent guardianship and standby adoption are essentially untested, and the extent to which states will embrace these approaches is unclear. More apparent is that these innovations, and the others certain to follow in their wake, will forge new frontiers in family law of relevance to parents with HIV. Concurrent guardianship, if enacted, will challenge long-established roles with regard to child welfare, loosening the judicial supervision of child custody and care arrangements. Standby adoption likewise interjects some much-needed flexibility into an area of family law that traditionally has been relatively unyielding and final in its application.
These developments can be attributed to the tireless efforts of advocates attempting to address the unmet needs of their adult clients with HIV. Although the availability of permanency planning tools continues to vary by state, an increasing number of parents with HIV now have more planning options than at any time in the nation’s history.
§ 13.13 Foster Care
The foster care system, also called the child welfare system, arose out of the Western colonial era indenture of older children from modest economic circumstances; children were placed with families other than their own to learn a craft or trade or to work as a servant. Even after indenture ceased to be commonplace among children, philanthropies and state and local governments continued the practice of placing poor children with non-relatives. The federal government entered the foster care arena in 1961 by authorizing the use of federal funds to subsidize foster care.381
Today, most children who enter the child welfare system continue to be from disadvantaged families. Due to the lack of financial and other resources, the spread of HIV among young women with children, poor parental health and lack of access to appropriate health care, and parental drug use, interaction with the child welfare system and placement of children in foster care is a sad reality for many HIV-affected families.
A biological parent has the right to raise a child under the Ninth Amendment and the Due Process and Equal Protection Clauses of the Fourteenth Amendment. However, the state will intrude upon the parent-child relationship when the child is subject to parental abuse or neglect. The child may become a ward of the state and be placed in foster care, to be raised temporarily in the home of licensed non-relatives or kin.382 While in foster care, the state child welfare agency retains legal custody of the child. The licensed foster home in which the child is placed receives federal funds to care for the child. The foster care placement is intended to be temporary, until the problems causing the removal have been resolved and the child returned to the parent. If the problems cannot be resolved or if the parent consents, parental rights may be terminated.383
The Adoption Assistance and Child Welfare Act, passed in 1980, established comprehensive standards for state foster care systems.384 Congress expanded its control over the foster care system with the Adoption and Safe Families Act in 1997, enacted to increase the number of children adopted from the foster care system.385
The licensed foster families may be relatives of the child. This practice is known in many states as kinship foster care.386 Kinship foster care is an option parents with children placed in foster care might choose if the option is provided to them. Children in kinship foster care would remain in the family and would be raised in a culturally appropriate household.387 The 1996 welfare reform legislation requires that states give priority to relatives to care for children in foster care.388 However, although child welfare agencies often favor relatives, and parents may get to voice an opinion, the choice of kinship foster care is not guaranteed for all children entering the child welfare system. It is often difficult for relatives to meet the requirements to become licensed foster parents, and a state is not required to assist the relatives in becoming licensed.389 A relative who cares for a foster child must meet the same licensing standards as a non-relative foster parent for a state to receive federal reimbursement for the services from Title IV-E funds.390 Some states provide Temporary Assistance to Needy Families391 (TANF) child-only grants to kinship care providers who cannot meet a state’s foster care licensure standards, if they qualify under the TANF definition of kin.392 Other states have developed programs that subsidize kinship caregivers at levels between the Title IV-E and TANF levels.
Foster Care and Subsidized Guardianship. Thirty-four states and the District of Columbia offer subsidized guardianship as a permanency option when a child in kinship foster care cannot be reunited with a parent.393 Although subsidized guardianship is not considered as permanent as adoption, a kinship care provider may choose this option because it does not sever the parent-child relationship and provides more permanency and fewer constraints than long-term foster care. However, kinship care providers must also consider that subsidized guardianship, unlike adoption, may not end the scrutiny of the family by the child welfare system. Subsidized guardianship payments to a family can be as much as foster care payments.394 States offering these payments, however, cannot receive federal reimbursement for the subsidized guardianship program. An exception exists in seven states where the Department of Health and Human Services, in a project to evaluate whether subsidized guardianship is a viable alternative to adoption for certain children, has granted waivers.395
HIV Testing in Dependency Cases. The issue of HIV testing of children and parents has been raised in foster care cases, but the HIV test has not been ordered by any court. Courts have cited confidentiality laws protecting HIV-related information in declining to order HIV testing. In the case of In re Harry G.,396 a New York family court denied the law guardian’s motion for an order of discovery to compel the respondent, a non-relative household member, to submit to an HIV test. The respondent had been accused of child abuse and neglect of an eight-year-old boy. In making the motion, the law guardian for the child asserted that the boy had a fear of HIV because of the respondent’s sexual abuse, and that if the respondent transmitted HIV to the child, a separate act of child abuse could be charged against the respondent.
Citing New York’s Public Health Law, the court limited itself to ordering an HIV test only with written, informed consent of the respondent unless “specifically authorized or required by a state or federal law.”397 Rejecting the law guardian’s assertion that the court could order the test in order to add an additional count of child abuse under the New York Family Court Act, the court denied the motion unless the respondent consented in writing to the HIV test.
The New York Supreme Court, Appellate Division, reviewing In re Harry G., affirmed the Family Court’s order in In re Michael “WW.”398 The court stated that even if the Family Court Act’s testing authorization was an exception to the Public Health Law’s informed consent requirement for HIV testing, the test could be performed “only if the court finds probable cause that the evidence is reasonably related to establishing the allegations in a petition.”399 The court stated that establishing that the respondent was HIV-positive through an HIV test would not prove that he sexually abused the child as alleged in the petition, nor would it prove that the virus was transmitted to the child. The court stated that the child would need to be tested to determine if he were infected. If the child did test HIV-positive, that fact plus the allegations of the abuse petition might establish probable cause to order an HIV test of the respondent.400
In a New York abuse and neglect case, In re R. Children,401 the respondent father moved for an HIV test of the daughter whom he had been found to have sexually abused. The father’s request was denied. Because of the abuse finding, the daughter was placed in foster care and an order of protection against the father was entered. The Appellate Division affirmed the Family Court’s determination that the respondent father had not established a “compelling need for disclosure”402 of the child’s confidential HIV information. The abuse petition had not charged the respondent with transmitting HIV to his daughter, there was no proof that the respondent was HIV-positive, and an HIV-negative test result of the child would not disprove the abuse the respondent was found to have committed.
HIV-Positive Status of Foster Family Members. Only two cases have addressed the foster care implications of HIV-positive members of the foster care family. In one case the foster child had lived with the foster family for over three years at the time of litigation, while in the other case the prospective foster family was attempting to have a child placed in the home. In a Nebraska Court of Appeals case, In re John T.,403 the court reversed the lower court’s order to remove a foster child from the foster home where one parent had AIDS. The three-and-a-half-year-old boy had been placed with a foster mother and father when he was three months old. The foster mother knew she was HIV-positive at the time she and her husband applied to be foster/adoptive parents. They did not disclose her HIV status to the Nebraska Department of Social Services (DSS) because they thought, perhaps correctly, that DSS would not place a child with them if this fact were known. The foster father tested negative for HIV. At some point the foster mother’s HIV-positive status became known to DSS, and she requested that the child’s permanency plan be changed from foster care with eventual adoption to long term foster care. Since the child was freed for adoption because the parents had given up their parental rights, the Nebraska Administrative Code required that DSS develop a plan for adoption of the child. When DSS moved to remove the child from his placement because of the foster mother’s AIDS diagnosis, the guardian ad litem and the foster parents opposed the move.
In approving the DSS removal plan, the lower court found that it was in the child’s best interests to remain in foster care and then to be adopted following a plan that included the removal of the child to a new foster/adoptive home. The court found that the guardian ad litem failed to show by clear and convincing evidence that the best interests of the child required that the child not be removed from the household. In denying a new trial upon motion by the guardian ad litem, the court found that the guardian ad litem failed to prove by even a preponderance of the evidence that the DSS plan was not in the best interests of the child.
On appeal, the Court of Appeals, trying the case de novo on the record, considered the opinions of a psychologist, a psychiatrist, and the Nebraska Care Review Board, in favor of the foster parents. The court also considered the opinion of a psychiatrist who had not spoken to the child or the foster parents and had not seen the child interact with the foster parents, in favor of the DSS removal plan. Additionally, the court took into account the fact that the foster parents had asked for the plan to be changed when the foster mother’s HIV-positive status became known, and the absence of risk of HIV transmission to the child from household contact.404
The Court of Appeals found by a preponderance of the evidence that it was in the best interests of the child to stay in the home of his foster parents. In reaching its conclusion, the court stated that “parents suffer and die from illness, and their children observe this and suffer with their parents. However, the children hopefully learn that although painful, death is a natural part of the cycle of life.”405 The court added that “[s]hould [the child] suffer the loss of his foster mother at a young age, his foster father and his extended family will be there to help him endure that misfortune. In the meantime, the evidence shows that he will be loved and well cared for.”406
After the lower court adopted a new DSS plan to have another foster family adopt the child, the original foster/adoptive parents, GayLynn and Jay Brummett, were granted a writ of mandamus from the Nebraska Supreme Court ordering the lower court to comply with the ruling of the Nebraska Court of Appeals. The child, Noah, was returned to the Brummetts’ home, and eight months later the Brummetts filed a petition for adoption. GayLynn died the next day, and the adoption decree was subsequently entered, naming GayLynn and Jay Brummett the adoptive parents of Noah.
The Brummetts and the child filed a separate action in federal district court during the time Noah had been removed from the Brummetts’ home for adoption by another family, asking for damages under section 504 of the Rehabilitation Act. The state moved to dismiss the suit on the basis that it had immunity from suit under the Eleventh Amendment of the U.S. Constitution. After the district court denied that motion, the state made an interlocutory appeal to the Court of Appeals for the Eighth Circuit.406.1 The Court of Appeals for the Eighth Circuit upheld the district court’s decision, ruling that the state waived its sovereign immunity when it accepted federal funds for its foster care and adoption programs under section 504 of the Rehabilitation Act.
In 2004, the parties settled the suit for an undisclosed amount.406.2 As part of the settlement, the state of Nebraska agreed not to discriminate against prospective foster or adoptive parents who are HIV-positive.
In a recent decision by the U.S. Court of Appeals for the Third Circuit, Doe v. County of Centre,407 prospective foster parents caring for two sons, including a ten-year-old adopted boy who was living with AIDS, sued pursuant to the Americans with Disabilities Act (ADA) and Rehabilitation Act because they were denied participation in the foster care program due to their son’s AIDS diagnosis. The Centre County Office of Children and Youth Services in Pennsylvania allowed a family with a member living with a “serious infectious disease” to be a foster family only to a child with the same condition. The exception to this policy was if the biological parent or the guardian of the child gave informed consent allowing such placement.
The U.S. District Court for the Middle District of Pennsylvania found that the county had offered “reasonable accommodation” and did not violate the ADA because a child with the same “serious infectious disease” as the son could be placed in the home, or the parents could obtain informed consent of the biological parent of the foster child.408 The court granted summary judgment for the county, concluding that placement of a child in the home posed a significant risk of transmission of HIV from the child with AIDS as a result of sexual contact. The court accepted the county’s assertion that some foster children were sexually aggressive (the county estimated that 12 percent of its foster children had histories of perpetrating some form of “sexual abuse”), and that it was impossible to identify such children in advance of foster placement. On appeal, however, the Court of Appeals reversed and remanded the case for further proceedings, concluding that there was a genuine issue of material fact, established by objective medical evidence in the record, as to whether placement of a child in the home posed a significant risk of HIV transmission. The Court of Appeals rejected the trial court’s analysis of the ADA direct threat issue as failing to make an individualized inquiry into the significance of the threat posed.
§ 13.14 Termination of Parental Rights
When a child in foster care cannot be reunited with the biological parents because the parents permanently abandon or neglect the child or are otherwise unfit, a court may find that a child’s best interests will be served by the termination of the parents’ rights to the child and freeing the child for adoption.409 The parent-child relationship will be permanently severed, and the parents will no longer have rights nor responsibilities toward the child. The Adoption and Safe Families Act410 mandates that when a child has been in foster care for 15 of the most recent 22 months, a petition to terminate parental rights must be filed, unless the child is living with a relative, there is a compelling reason that filing a petition would not be in the child’s best interests, or the state has not provided services necessary to return a child safely to the parents.411 Fifteen months is a short time for an HIV-positive parent with a child in foster care to deal with problems that might include poverty, homelessness, poor mental and physical health, lack of access to health care, domestic violence and drug use in order to have a child returned home. Advocates for parents with children in foster care need to be aware of the short time frame so that appropriate services can be timely accessed.
The HIV status of a parent or a child has been an issue in proceedings to terminate parental rights. In In re J.F.,412 the Supreme Court of Montana reversed the lower court’s order granting the termination of the parental rights of an incarcerated father who refused to submit information about his medical condition. The two children, one-and-a-half-years and eight-months old, had been placed in foster care the day after the father was arrested on gun charges. He was subsequently sentenced to twenty months with credit for time served and placed in a federal prison in Minnesota “because of his AIDS-related physical impairments.”413 Later that same month, the trial court found the children abused, neglected or dependent or in danger of becoming abused, neglected or dependent. Three months later, the state Department of Health and Human Services (DPHHS) petitioned for temporary legal custody of the children, requesting waiver of a treatment plan for the father due to his “‘unstable’ health and the length of his incarceration.”414 The court granted DPHHS’s request. Ten months after the children first entered the foster care system, DPHHS petitioned for permanent legal custody of the children, and to terminate the father’s parental rights. At the termination of the parental rights hearing in which the father participated by telephone, the trial court terminated the father’s parental rights, finding that the treatment plan was impractical, considering, among other things, the father’s non-cooperation with DPHHS, and specifically, his refusal to release information about his medical condition.
The father appealed the finding that a treatment plan was not practical, arguing that one was never discussed with him. The record showed that the father was not told that he needed to disclose his medical information in order to participate in a treatment plan, and verified that no plan was discussed with him. The court reversed the order terminating the father’s parental rights, holding that DPHS must discuss with a parent the possibility of implementing a treatment plan, and that unless a parent is informed that cooperation is necessary, lack of cooperation is not enough to conclude that a treatment plan is not practical.
In another termination of parental rights case, In re Micah Alyn R.,415 the West Virginia Supreme Court of Appeals reversed an order terminating the parental rights of an HIV-positive mother, Ada R., to her son, who was also HIV-positive. The mother voluntarily placed her son in foster care when he was two-and-a-half years old because of their “severe illnesses.”416 The mother had visitation with her son while he was in foster care. One year later, the Department of Health and Human Resources (DHHR) sought termination of the mother’s parental rights, based on her physical and mental inability to care for her son, the physical abuse of the child, and the mother’s inability to administer properly his HIV medication. The trial court found DHHR’s allegations to be true and terminated the mother’s parental rights. She was given two hours per week of post-termination visitation with her son.
In reviewing the case, the Supreme Court of Appeals stated that “it appears that the principal reason that the [trial] court terminated Ada L.’s [sic] parental rights is the tragic fact that she is suffering from a terminal illness.”417 The court continued by noting that the mother might have chosen to select a standby guardian for her son if that option had been available to her.418 According to the court, the mother was trying to do what was best for her child by voluntarily placing him in foster care, but as she was no longer able to care for her son due to her illness, she was now in danger of losing her parental rights altogether. The court held:
[W]hen a parent is unable to properly care for a child due to the parent’s terminal illness, so that conditions which would constitute neglect of the child occur and continue to be threatened, termination of parental rights, without consent, is contrary to public policy, even though there is no reasonable likelihood that the conditions of neglect will be substantially corrected in the future. In such circumstances, a circuit court should ordinarily postpone or defer any decision on termination of parental rights.419
The court reversed the trial court’s termination of parental rights order and remanded the case to develop a visitation plan between the mother and her son and ensure that his foster parents would be able to adopt the child at the appropriate time.
In a New York case involving an HIV-positive child, In re Atreyu Rashawn G.,420 a father’s parental rights were terminated for his failure to care for his son’s medical needs. The Appellate Division affirmed the Family Court’s order terminating the father’s rights because of his permanent neglect of the child as defined by New York’s Social Service Law. The father was found to have failed to plan for the return of his child to him for more than one year. During that time, the father repeatedly did not attend medical training sessions that would enable him to care for his child’s needs.
The Supreme Court of Rhode Island affirmed the termination of parental rights of a mother to her four children in In re Delicia B.421 At least one child was HIV-positive. Unfitness of the mother was found in part because under her care, the children missed medical appointments, including those for HIV treatment. The children were also found to lack basic necessities including adequate housing, food, and clothing.
§ 13.15 —Disability Discrimination Challenges to Termination of Parental Rights
Courts in 19 states have addressed in published decisions the issue whether the Americans with Disabilities Act (ADA)422 applies in termination of parental rights proceedings. No court has held unequivocally that the ADA does apply, although some rulings were made on the assumption that it does apply. In these cases, HIV and AIDS were not raised by the parents as disabling conditions.
Courts in Connecticut,423 Louisiana,424 Massachusetts,424.1 Michigan,425 New York,425.1 and Vermont426 have ruled that the ADA does not apply in termination of parental rights proceedings because the proceedings are not “services, programs or activities”427 under the ADA. An Indiana court held that the ADA does not apply because the state’s termination of parental rights statute does not require the services the parent alleged were required under the ADA.428 The Wisconsin Court of Appeals,429 the California Court of Appeals,430 and the Court of Appeals of Colorado430.1 sided with the majority of the states, holding the ADA inapplicable in termination cases. The Superior Court of New Jersey, in dicta, has agreed with the majority.430.2 However, the Intermediate Court of Appeals of Hawaii, while affirming the termination of parental rights, concluded that a termination proceeding is a “program or activity” subject to the ADA.430.3 A Texas court determined that the violation of the ADA in a termination of parental rights case is an affirmative defense that must be pleaded or it is waived.431 Courts in Alaska,431.1 Arkansas,432 and Washington,433 while not explicitly finding that the ADA applies in termination proceedings, determined that “reasonable accommodations” pursuant to the ADA had been made. The Supreme Judicial Court of Maine,434 affirming the lower court’s termination of a mother’s parental rights, assumed the ADA was applicable and held that the mother failed to demonstrate that reasonable accommodations had not been made. In a Pennsylvania dispositional review proceeding to change the goal of a child’s placement plan from reunification with his mother to adoption, which is a precursor to the filing of a termination petition, the court found the ADA inapplicable.435 This pattern of rulings suggests that advocates for clients facing termination of parental rights may need to consider the applicability of other sections of the ADA and other relevant statutes and laws in these proceedings. But in Doe v. Division of Youth and Family Services,435.1 the court allowed a Rehabilitation Act discrimination claim to proceed. In that case, a mother alleged that because of her HIV infection, she was denied the right to make decisions regarding her newborn child’s medical care. The case involved a challenge to the New Jersey Division of Youth Services alleged policy of removing newborns from their HIV-infected mothers on the presumption of abuse and neglect stemming from the mothers’ presumed drug involvement.
§ 13.16 Adoption Assistance
The proportion of all reported AIDS cases among women in the United States has tripled from 7 percent in 1985 to 23 percent in 1999. Women of color account for more than three-fourths of these reported AIDS cases. According to CDC estimates, between 120,000 and 160,000 adult and adolescent women are currently living with HIV infection in the United States. The vast majority of these women are in their child-bearing years.436 As a result of this unfortunate trend, an increasing number of children, the majority of whom are not HIV-infected, are at risk of losing their mothers to HIV. Many of these children end up in the child welfare system.437
Today federal and state adoption assistance programs are designed to provide adoptive parents of special needs children the financial resources and necessary services to meet their children’s varied and often expensive needs. The Adoption Assistance and Child Welfare Act of 1980438 was passed by Congress to encourage permanent homes for children in foster care, either through reunification with their natural parents, or, when reunification is not feasible, placement with adoptive parents. This legislation provides federal funding for adoption assistance for children with special needs to states that comply with federal guidelines. Funding is provided to adoptive parents for one-time payments of nonrecurring adoption expenses and, for children who are eligible, ongoing adoption assistance payments.439 The availability of financial adoption assistance can make the difference as to whether prospective adoptive parents can afford to adopt “special needs” children, such as those affected by or infected with HIV.
§ 13.17 —Eligibility for Federal Adoption Assistance
To be eligible for ongoing federal adoption assistance payments, a child must meet both financial and non-financial eligibility requirements. The focus is on the eligibility of the child. There can be no income eligibility requirement or “means test” for the prospective adoptive parent(s) in determining eligibility for adoption assistance payments.440 If a child is eligible for either Supplemental Security Income (SSI) or Aid to Families with Dependent Children (AFDC) at the time of the adoption, he or she will meet the financial eligibility requirements for federal adoption assistance payments. Because the AFDC program has been discontinued, the state must determine whether the child would have been eligible for AFDC under the July 1996 guidelines, if not removed from the home.441
In addition to the financial eligibility requirements, the child must be a child with special needs. The state must first determine that the child “cannot or should not be returned to the home of his parents.”442 The state must then determine that a specific factor or condition exists with respect to the child that would reasonably be expected to prevent that child’s placement with adoptive parents unless adoption assistance or medical assistance are provided. Examples of such factors or conditions, as set forth in federal law, include ethnic background, age, membership in a minority or sibling group, medical conditions, or physical, mental, or emotional handicaps.443 Certainly HIV-infected children are likely to be included in any state’s definition of children with special needs. In addition, many children of HIV-infected parents who are not themselves infected will fall into the category of children with special needs because of their ethnic background, membership in a minority group, or emotional handicaps.
Before providing adoption assistance, the state must also show that “a reaso-nable, but unsuccessful, effort has been made to place the child with appropriate adoptive parents without providing adoption assistance . . . or medical assistance.”444 The state need not make this showing where it would be contrary to the best interest of the child as, for example, in the situation where the child develops “significant emotional ties” with the prospective adoptive parents while in their care as a foster child.445
The Children’s Bureau of the U.S. Department of Health and Human Services is charged with issuing policy guidance relating to the Adoption Assistance and Child Welfare Act. This is accomplished through publication of the Web-based Child Welfare Policy Manual.446 The Bureau has clarified the steps that agencies should take in their attempts to locate adoptive homes for children and has rejected the notion that children should be left in foster care while agencies attempt to locate families willing to adopt without subsidies. First, the agency should locate the most suitable family for the child. Once that family has been identified, the agency should make full disclosure of the child’s background and known or potential problems to the family. If the child is identified as a child with special needs, the agency should ask whether the prospective adoptive parents would be willing to adopt without a subsidy. If not, the agency would meet the federal statutory requirement “that there be a reasonable, but unsuccessful, effort to place the child without providing adoption assistance.”447
§ 13.18 —Types of Adoption Assistance
Federal Adoption Assistance Payments. For children who are eligible, adoption assistance payments are negotiated between the prospective adoptive parents and the agency on a case-by-case basis, taking into account the circumstances of the adoptive parents and the specific needs of the child. The amount of the payment may be adjusted periodically, depending on changes in circumstances and with the concurrence of the adoptive parents. The amount of the monthly payment cannot exceed the amount of the foster care maintenance payment which would have been paid for the same period if the child had been in a foster home.448 Federal law requires that an adoption assistance agreement be signed between the prospective adoptive parents and the agency and be in effect “at the time of or prior to the final decree of adoption,”449 unless the prospective adoptive parents can show extenuating circumstances preventing such an agreement.450 The adoption assistance agreement must be in writing and specify duration; nature and amount of any payment, services and assistance to be provided; that the child is eligible for Medicaid services; and that the agreement shall remain in effect regardless of the state in which the adoptive parents reside.451
Adoption assistance payments may begin prior to the final adoption decree, provided that the adoption assistance agreement has been signed and the child has already been placed in the adoptive home.452
Adoption assistance payments terminate when the child is eighteen or, if the state determines that the child has a mental or physical handicap which warrants the continuation of assistance, when the child turns 21. Payments will also terminate if the state determines that the adoptive parents are no longer legally responsible for providing support to the child, or if the adoptive parents are no longer providing support for the child.453
State Adoption Assistance Programs. Many states provide adoption assistance payments to prospective parents adopting special needs children over and above what is provided under federal law.454 State adoption assistance programs may provide assistance to children who are ineligible for federal adoption assistance.455
Medical Assistance. Children who are eligible for federal adoption assistance payments are also eligible for Medicaid coverage.456 In addition, children with special needs for medical, mental health or rehabilitative care, whose special needs prevent them from being placed for adoption without medical assistance, and for whom there is in effect a state adoption assistance agreement, must be provided with Medicaid coverage or the health insurance coverage equivalent.457 Depending on the circumstances of the adoptive parents, it is possible to have an adoption assistance agreement for medical coverage only, without adoption assistance payments.
Non-Recurring Adoption Expenses. Parents who adopt children with special needs through a state agency or through another public or nonprofit private agency, are eligible for payment of non-recurring adoption expenses to help defray the costs of the adoption.458 These expenses are defined by law as “reasonable and necessary adoption fees, court costs, attorney fees and other expenses which are directly related to the legal adoption of a child with special needs, which are not incurred in violation of State or Federal law, and which have not been reimbursed from other sources or other funds.”459 These costs can also include costs such as the pre-placement assessments and medical and psychological exams required for the adoption.460
Adoptive parents cannot be required to meet a “means test” in order to be eligible for payment of nonrecurring adoption expenses, nor is the child required to meet financial eligibility requirements.461 This is in contrast to the financial eligibility requirements for the child in the case of ongoing adoption assistance payments.
The amount of the payment is negotiated between the adoptive parents and the state agency administering the program. The Federal Adoption Assistance Program will match state expenditures up to $2,000 at a 50-percent rate.462 To be eligible for payment of non-recurring adoption expenses, the adoptive parents must, in most cases, sign an agreement for payment of such expenses before the final decree of adoption is signed.463
Social Services. Notwithstanding eligibility for adoption assistance payments, adoptive parents may also be entitled to social services funded by Title XX of the Social Security Act.464 These services may include day care, respite care, counseling services, educational services, and institutional care.465
§ 13.19 —Interstate Compact on Adoption and Medical Assistance
Federal law provides that adoption assistance agreements “shall contain provisions for the protection (under an interstate compact approved by the Secretary or otherwise) of the interests of the child in cases where the adoptive parents and child move to another State while the agreement is effective.”466 The Interstate Compact on Adoption and Medical Assistance sets out an orderly process designed to facilitate the provision of adoption assistance payments and medical assistance benefits to children with special needs who move to another state after their adoption is final and to eligible children who are placed for adoption across state lines. For the states that have adopted it, the Compact is a binding contractual agreement between states designed to ensure continuity of adoption assistance and medical services to children with special needs from state to state.467 Thirty-nine states are members of the Interstate Compact on Adoption and Medical Assistance.468
§ 13.20 —Legal Rights of Adoptive Parents Who Are Denied or Not Offered Adoption Assistance469
Adoptive parents who are denied adoption assistance under the Adoption Assistance and Child Welfare Act of 1980 are entitled to a fair hearing before the state agency administering the assistance program.470 In certain circumstances, adoptive parents may also seek adoption assistance even after the final adoptive decree has been entered. The Children’s Bureau of the U.S. Department of Health and Human Services in their Web-based Child Welfare Policy Manual, has clarified that adoptive parents can request a fair hearing on the issue of adoption assistance even after the adoption has been finalized. Extenuating circumstances include the following:
• Failure to properly diagnose a child’s medical condition prior to adoption;
• -Failure of the adoption agency to present relevant facts regarding the child, the biological family or the child’s background, to the adoptive parents prior to the final adoption;
• -Failure of the state agency to notify the adoptive parents of the availability of adoption assistance;
• An erroneous determination by the state agency that the child does not meet the eligibility criteria for adoption assistance;
• Denial of assistance based on a means test of the adoptive family;
• Decrease in the amount of adoption assistance without the concurrence of the adoptive parents; and
• Denial of a request for a change in payment level based on a change in adoptive parents’ circumstances.471
1 See generally Theodore J. Stein, The Social Welfare of Women and Children with HIV and AIDS 64-71 (1998) (describing the legal protections, policies and programs of importance to women and children with HIV, including the child welfare system).
2 See generally William N. Eskridge, Jr., GAYLAW: Challenging the Apartheid of the Closet (1999) (providing a comprehensive analysis of the legal issues concerning gender and sexual nonconformity in the United States); Lesbians, Gay Men and the Law (William B. Rubenstein ed., 1993) (describing, among other things, the discrimination against gays and lesbians in partnering and parenting).
3 See Ill. Rev. Stat. ch. 40, § 204 (1987) (repealed); La. Rev. Stat. Ann. § 9:229 (West 1991) (repealed). Cf. 750 Ill. Comp. Stat. § 5/204 (West 1999) (free brochures on HIV for persons applying for marriage license).
4 See Bernard J. Turnock & Chester J. Kelly, Mandatory Pre-Marital Testing for Human Immunodeficiency Virus: The Illinois Experience, 261 JAMA 3415 (1989) (noting that after six months of experience with mandatory HIV testing, the seroprevalence rate was .011 percent, with a resulting cost of $312,000 per individual identified as HIV-infected; at the same time, the rate of marriage license issuance in Illinois declined by 22.5 percent); see also Stephen C. Joseph, Premarital AIDS Testing: Public Policy Abandoned at the Altar, 261 JAMA 3456 (1989) (editorial by New York’s Commissioner of Health).
5 Mo. Ann. Stat. § 191.692 (West 1996).
6 See, e.g., W. Va. Code Ann. § 16-3C-2(g) (Lexis 2001); Ga. Code Ann. § 19-3-35.1(c) (Lexis 1999); S.D. Codified Laws § 25-1-28.1 (Lexis 1999); Ind. Code Ann. § 31-11-4-5(a), (b), (d) (Lexis 2000); Haw. Rev. Stat. Ann. § 572-5(d) (Lexis Supp. 2002); R.I. Gen. Laws § 23-1-36.1 (Lexis 2001).
7 See, e.g., W. Va. Code Ann. § 16-3C-2(g) (Lexis 2001); Tex. Fam. Code Ann. § 2.009(c)(4) (West Supp. 2004).
8 See, e.g., Ga. Code Ann. § 19-3-35.1(c) (Lexis 1999).
9 See Mich. Comp. Laws Ann. § 333.5119(1) (West Supp. 2001).
10 See Utah Code Ann. § 30-1-2(1) (repealed 1993). Cf. Utah Code Ann. § 30-1-2.3 (Lexis 1998).
11 T.E.P. v. Leavitt, 840 F. Supp. 110 (D. Utah 1993).
12 Okla. Stat. Ann. Tit. 63, § 1-519 (West Supp. 2004). “Infected person” is defined in the statute as “any individual, either sex, who may be carrying the organism or is afflicted with any venereal disease.” Okla. Stat. Ann. Tit. 63, § 1-517(b) (West 1997).
13 840 F. Supp. 110 (D. Utah 1993).
14 See § 2.9 for a discussion of mandatory HIV testing of newborns.
15 See Pierce v. Society of Sisters, 268 U.S. 510 (1925); Meyer v. Nebraska, 262 U.S. 390 (1923).
16 See Prince v. Commonwealth of Massachusetts, 321 U.S. 158 (1944).
17 See generally 42 Am. Jur. 2d Infants § 16 (West 2000).
18 42 Am. Jur. 2d Infants § 16 (West 2000); see also Custody of a Minor, 379 N.E.2d 1053 (Mass. 1979).
19 See Custody of a Minor, 379 N.E.2d 1053 (Mass. 1979); In re Sampson, 317 N.Y.S.2d 641 (Ulster County Family Ct. 1970).
20 640 So. 2d 969, (Ala. Ct. App. 1994); see also Adoption of Jaclyn, 2003 WL 21768008 (Mass. App. Ct. July 31, 2003), in which the court upheld a finding that the mother was unfit to parent her children in part because she refused anti-retroviral therapy during pregnancy, refused to test her children for HIV or enroll them in a children’s AIDS program, and failed to consistently administer HIV medication to her HIV-infected child.
21 Id.; Ala. Code § 12-15-30(c) (Michie 1995) provides: “The court shall have original jurisdiction in proceedings . . . concerning any child . . . who requires emergency medical treatment in order to preserve his life, prevent permanent physical impairment or deformity or alleviate prolonged agonizing pain.”
22 640 So. 2d 969, 971.
23 Id. at 971. For example, at the hearing, the mother took the position that she did not believe the child was infected with HIV and therefore she would not give the child any medicine designed to treat HIV. Id. at 970.
24 Id. at 971.
25 720 A.2d 562 (Me. 1998).
26 Id. at 563.
27 Id.
28 Id. at 564.
29 Id. at 565 (citing 22 Me. Rev. Stat. Ann. § 4035(2) (West 1992)).
30 Id.
31 Id. at 564.
32 Id. at 567.
33 Id. at 568.
34 In re Tyson, 1999 WL 997489 (Or. Cir. Ct. Apr. 20, 1999).
35 See E.M. Connor et al., Reduction of Maternal-Infant Transmission Of Human Immunodeficiency Virus Type 1 With Zidovudine Treatment, 331 New Eng. J. Med. 1173 (1994).
36 See Kenneth Lee Dominguez & R. J. Simonds, Postexposure Prophylaxis, in Handbook of Pediatric HIV Care 297 (Steven L. Zeichner & Jennifer S. Read eds., 1999) (pointing out that “one study estimated that between 5% and 10% of HIV-uninfected infants born to HIV-infected mothers in the United States subsequently become infected through breast-feeding”). The issue of whether HIV-infected women should refrain from breast-feeding in developing countries is much more problematic, where safe alternatives to breast-feeding may be unavailable.
37 See ; (visited Dec. 10, 2003).
38 In re Tyson, 1999 WL 997489 (Or. Cir. Ct. Apr. 20, 1999).
39 Id.
40 Id.
41 See generally 24 Am. Jur. 2d Divorce and Separation §§ 19, 22 (West 1998).
42 See generally id. § 19.
43 Id.
44 See generally id. §§ 50, 52, 59.
45 See generally id. § 564.
46 See R.E.G. v. L.M.G., 571 N.E.2d 298 (Ind. Ct. App. 1991); Doe v. Doe, 519 N.Y.S.2d 595 (Kings County 1987).
47 571 N.E.2d 298, 300 (Ind. Ct. App. 1991). Despite the fact that both the wife and the husband tested negative for HIV more than two years after ending sexual relations, the wife, a nurse, testified that she was afraid of developing AIDS “because the virus could show at anytime.” Id. at 302.
48 Id. at 301–302.
49 Id. at 302, 304. The court reasoned further that if the wife was at risk for developing AIDS, then her husband would also be at risk and “this risk has an identical impact upon the husband’s future economic circumstances.” As further support for its holding the court stated, “In fact, if we were to remove fault from the analysis and take judicial notice of the fact that the wife surely wishes us to take notice of—that gay men are generally at greater risk for developing AIDS than the general population, trial courts should, as general rule, effect property distributions in favor of gay husbands under the ‘health and economic circumstances’ rationale.” Id. at 304.
50 Id. at 306.
51 519 N.Y.S.2d 595 (Kings County 1987).
52 Id. at 597.
53 Id. The court characterized the wife’s fraud claim as a claim “in which it is alleged that the husband knew or should have known that he may have had contact with a party who had a disease which may have been transmitted to him, that he had an affirmative duty to disclose the fact that he may have been exposed to the disease which may have been transmitted to him, but failed to do so, and that he intentionally misrepresented his condition (that he may have been exposed to the disease and may have had it transmitted to him) to her, causing her not to contract the disease (which is clearly a deadly disease), not to be definitely exposed to the disease, but rather possibly exposing her to the disease and thereby resulting in embarrassment.” Id.
54 See Ch. 8 for a more exhaustive discussion of tort liability issues.
55 See, e.g., Delay v. Delay, 707 So. 2d 400 (Fla. Dist. Ct. App. 1998); see also Tischler v. Dimenna, 609 N.Y.S.2d 1002 (Westchester County 1994).
56 See Eric L. Schulman, Sleeping with the Enemy: Combating the Sexual Spread of HIV-AIDS Through a Heightened Legal Duty, 29 J. Marshall L. Rev. 957 (1996).
57 See, e.g., Tischler v. Dimenna, 609 N.Y.S.2d 1002 (Westchester County 1994); see also Doe v. Johnson, 817 F. Supp. 1382, 1393 (W.D. Mich. 1993); J.B. v. Bohonovsky, 835 F. Supp. 796 (D.N.J. 1993).
58 See Eric L. Schulman, Sleeping with the Enemy: Combating the Sexual Spread of HIV-AIDS Through a Heightened Legal Duty, 29 J. Marshall L. Rev. 957 (1996) (discussing liability for exposure to infectious diseases generally and sexually transmitted diseases specifically).
59 817 F. Supp. 1382 (W.D. Mich. 1993).
60 Id. at 1393.
61 626 N.Y.S.2d 446, 452 (App. Div. 1995).
62 694 N.Y.S.2d 772 (App. Div. 1999).
63 707 So. 2d 400 (Fla. Dist. Ct. App. 1998).
64 Id. at 401.
65 Id. at 402.
66 438 N.W.2d 441 (Minn. Ct. App. 1989).
67 See, e.g., J.B. v. Bohonovsky, 835 F. Supp. 796 (D.N.J. 1993).
68 See, e.g., Tischler v. Dimenna, 609 N.Y.S.2d 1002 (Westchester County 1994).
69 Id. at 1008.
70 Id. at 1005, 1008 (acknowledging the medical consensus that 95% of all persons who will test positive for HIV do so within six months of exposure).
71 835 F. Supp. 796 (D.N.J. 1993).
72 582 N.Y.S.2d 608 (New York County 1992).
73 609 N.Y.S.2d 1002 (Westchester County 1994).
74 See, e.g., Steven L. v. Dawn J., 561 N.Y.S.2d 322 (Kings County 1990) (holding that HIV status alone is not grounds for a change of custody and that the mother’s HIV status has not significantly impaired nor would it in the near future significantly impair the mother’s ability to care for her child); Newton v. Riley, 899 S.W.2d 509 (Ky. Ct. App. 1995).
75 See Steven L. v. Dawn J., 561 N.Y.S.2d 322 (Kings County 1990) (involving an attempt by the father to modify a previous custody order after the child’s mother tested positive for HIV); Jane W. v. John W., 519 N.Y.S.2d 603 (Kings County 1987) (in which the court refused to limit visitation, finding that the father with AIDS was capable of caring for his child).
76 See, e.g., Schumm v. Schumm, 510 N.W.2d 13 (Minn. Ct. App. 1993) (upholding court’s decision to award custody to father in light of mother’s major mood disorder and history of vascular headaches); see also In re Marriage of Carney, 157 Cal. Rptr. 383 (Sup. Ct. 1979) (holding that physical handicap cannot be considered per se evidence of unfitness as a parent or of probable detriment to the children); Harper v. Harper, 559 So. 2d 9 (La. Ct. App. 1990) (handicap, such as spina bifida, is a factor to consider in custody but not the sole consideration).
77 See generally Uniform Marriage and Divorce Act § 402, 9A U.L.A. 282 (1998); see also 24A Am. Jur. 2d Divorce and Separation § 931 (1998).
78 Uniform Marriage and Divorce Act § 402, 9A U.L.A. 282 (1998).
79 899 S.W.2d 509 (Ky. Ct. App. 1995).
80 Id. at 510.
80.1 784 So. 2d 166 (Miss. 2001).
80.2 Id. at 176.
80.3 Id. In addition to home environment, the court considered other factors, including the age of the child, health of the parents, future religious example, and ability and willingness to provide care, in reaching its decision regarding custody.
81 Fla. Stat. Ann. § 61.13(6) (West Supp. 2004).
82 See generally 24A Am. Jur. 2d Divorce and Separation §§ 973, 974 (1998).
83 See generally Uniform Marriage and Divorce Act § 407(a), 9A U.L.A. 398 (1998).
84 See generally 24A Am. Jur. 2d Divorce and Separation §§ 973, 974 (1998).
85 See, e.g., North v. North, 648 A.2d 1025 (Md. Ct. Spec. App. 1994) (court and parties agreed that it would be inappropriate to infer unfitness for visitation solely because of a non-custodial parent’s HIV status); Jane W. v. John W., 519 N.Y.S.2d 603 (Kings County 1987); Crockett v. Pastore, 2002 WL 78698 (Conn. S. Ct. 2002) (in deciding HIV-infected grandmother’s complaint for visitation, trial court held that grandmother’s health posed no risk to the child, but denied visitation on other grounds).
86 519 N.Y.S.2d 603 (Kings County 1987).
87 Id. at 605.
88 Id.
89 North v. North, 648 A.2d 1025 (Md. Ct. Spec. App. 1994); J.P. v. P.W., 772 S.W.2d 786 (Mo. Ct. App. 1989); Conkel v. Conkel, 509 N.E.2d 983 (Ohio Ct. App. 1987). See generally Paula L. Ettelbrick, Legal Issues Facing the Non-Traditional Family: Custody/Visitation Issues, 232 Tax Law and Estate Planning Course Handbook Series: Estate Planning and Administration 299 (Practicing Law Inst. ed., 1994) (for a compilation of resources on the legal issues faced by gay and lesbian parents in custody and visitation cases). See also Elizabeth Trainor, Annotation, Initial Award or Denial of Child Custody to Homosexual or Lesbian Parent, 62 A.L.R.5th 591 (1998); Caroll J. Miller, Annotation, Visitation Rights of Homosexual or Lesbian Parent, 36 A.L.R.4th 997 (1985 & Supp. 1999).
90 648 A.2d 1025 (Md. Ct. Spec. App. 1994).
91 Id. at 1027. The father lived with his HIV-infected male partner. Id.
92 Id.
93 Id. at 1030.
94 Id.
95 Id. at 1030 n.2.
96 509 N.E.2d 983 (Ohio Ct. App. 1987).
97 Id. at 987.
98 See generally 24A Am. Jur. 2d Divorce and Separation §§ 991, 992 (1998).
99 See, e.g., Steven L. v. Dawn J., 561 N.Y.S.2d 322 (Kings County 1990); see also Doe v. Roe, 526 N.Y.S.2d 718 (New York County 1988) (denying grandparents’ motion to have custodial father tested for HIV on the basis that infection with HIV would not justify removal of the children from their custodial parent).
100 561 N.Y.S.2d 322 (Kings County 1990).
101 Id. at 324.
102 Id. at 324, 326.
103 Id. at 323, 324.
104 521 N.E.2d 956, 959 (Ind. Ct. App. 1988).
105 Id. at 965.
106 Id. at 966.
107 1994 WL 649148 (Tenn. Ct. App. Nov. 18, 1994).
108 See, e.g., Doe v. Roe, 526 N.Y.S.2d 718 (New York County, 1988) (denying the motion of the maternal grandparents seeking custody of their grandchildren from the children’s custodial father for an order compelling the father to be tested for HIV after the father allegedly told various persons he had AIDS); Sherman v. Sherman, 1994 WL 649148 (Tenn. Ct. App. 1994) (reversing trial court’s order that the non-custodial father and his parents undergo periodic HIV testing because the children had contact with their HIV-infected uncle while visiting the father); Anne D. v. Raymond D., 528 N.Y.S.2d 775 (Nassau County 1988) (holding that husband’s allegation that his wife engaged in a series of extramarital affairs was insufficient to require her to be tested for HIV); Anon. v. Anon., 617 So. 2d 694 (Ala. Ct. App. 1993) (holding that marital infidelity is an insufficient basis for requiring an HIV test).
109 1994 WL 649148 (Tenn. Ct. App. Nov. 18, 1994).
110 Id. at *1, *2. The mother had moved to Clarksville, Tennessee and the father continued to live in Concord, North Carolina, where the parties had lived for most of their married life. Id. at *3.
111 Id. at *2.
112 Id. at *6.
113 526 N.Y.S.2d 718 (New York County 1988).
114 Id. at 726, 727.
115 See In re Michael “WW”, 611 N.Y.S.2d 47 (App. Div. 1994); In re Harry G., 599 N.Y.S.2d 425 (Broome County Fam. Ct. 1993). See Ch. 7 for a full discussion of involuntary HIV testing of criminal suspects and defendants.
116 N.Y. Pub. Health Law § 2781(1) (McKinney 1993).
117 611 N.Y.S.2d at 48; 599 N.Y.S.2d at 426.
118 611 N.Y.S.2d 47, 48.
119 599 N.Y.S.2d 425, 426 (Broome County Fam. Ct. 1993). The Law Guardian had argued that the HIV test was needed because: (1) his client feared that he might have contracted HIV; and (2) the transmission of HIV might be a separate act of abuse. Id. at 426.
120 855 S.W.2d 102 (Tex. Ct. App. 1993).
121 Id. at 103.
122 Id.
123 In this section, “parent” generally will refer to the legal custodian of the child and may include a guardian or other legally recognized caregiver. Where the distinctions are of significance, more precise terms will be used. Given the demographics of the HIV epidemic described below, the custodial parent will be referred to in the feminine.
124 42 U.S.C. §§ 670-679b (1994 & Supp. III 1997). Some commentators have traced the antecedents of the 1980 Act and its notions of permanency planning as far back as 1930. See Meryl Schwartz, Reinventing Guardianship: Subsidized Guardianship, Foster Care and Child Welfare, 22 Rev. L. & Soc. Change 441, 444 (1996).
125 Pub. L. No. 105-89, 111 Stat. 2115 (codified as amended in scattered sections of 42 U.S.C.). Numerous other federal laws affecting the relationship of family members in the public and private spheres have been enacted in the period between the passage of the Child Welfare Act and ASFA, including the Abandoned Infants Assistance Act of 1988, Pub. L. No. 100-505 §§ 101-301, 102 Stat. 2533, 2534–37 (1988) (as amended, Pub. L. No. 102-236, §§ 2-8, 105 Stat. 1812-1816 (1991)); the Child Abuse Prevention and Treatment Act, 42 U.S.C. §§ 5101 et seq. (1994 & Supp. III 1997); the 1993 Family Preservation and Family Support Services Program, Pub. L. No. 103-66 (as amended in 1997); and the Multiethnic Placement Act of 1994, Pub. L. No. 103-382, 108 Stat. 4056, as amended by the Interethnic Placement Provisions of the Small Business Job Protection Act of 1996, Pub. L. No. 104-188, § 1808, 110 Stat. 1903 (1996).
126 See, e.g., Children’s Bureau, U.S. Department of Health and Human Services, Adoption 2002: The President’s Initiative on Adoption and Foster Care (1999) (providing guidelines for public policy and state legislation regarding permanency for children, and summarizing the failings of the current child welfare system).
127 See Jeffrey Selbin & Mark Del Monte, A Waiting Room of Their Own: The Family Care Network as a Model for Providing Gender-Specific Legal Services to Women with HIV, 5 Duke J. Gender L. & Pol’y 103 (1998) (describing the demographic trends of the HIV epidemic, including the “third wave” of low-income, HIV-infected parents—particularly women—and their legal needs).
128 See Lisa A. Merkel-Holgu’n, Because You Love Them: A Parent’s Planning Guide (Child Welfare League of America ed., 1994) (exploring many of the psychosocial issues faced by terminally ill parents); see also U.S. Department of Health and Human Services, Blending Perspectives and Building Common Ground: A Report to Congress on Substance Use and Child Protection (1999) (a report mandated by § 405 of the ASFA describing “(1) the extent and scope of the problem of substance abuse in the child welfare population; (2) the types of services provided to this population; (3) the effectiveness of these services; and (4) recommendations for legislative changes that might be needed to improve service coordination”).
129 See LisaNadine Ramos, Choosing a Care Giver, in Permanency Planning with the HIV Affected Family: A Legal Perspective (The Adoption Exchange ed., 1996) (discussing issues related to the selection of a guardian).
130 See generally Susan L. Waysdorf, Families in the AIDS Crisis: Access, Equality, Empowerment, and the Role of Kinship Caregivers, 3 Tex. J. Women & L. 145, 159-72 (1994) (describing AIDS as a family disease and the complex needs of those families most affected by the epidemic). The importance of public benefits issues cannot be overstated in the permanency planning process. In addition to the programs discussed in Ch. 9, it is critical for parents with HIV and their advocates to be familiar with the complex and often counter-intuitive financial (dis)incentives connected to guardianships, foster care and other planning arrangements, which vary considerably by state. See generally Meryl Schwartz, Reinventing Guardianship: Subsidized Guardianship, Foster Care and Child Welfare, 22 Rev. L. & Soc. Change 441 (1996) (describing a number of benefits programs tied to permanency planning options, including demonstration projects in 10 states).
131 In 1969, the National Conference of Commissioners on Uniform State Laws adopted the Uniform Probate Code (UPC), including Article V addressing testamentary and inter vivos guardianships. See generally Prefatory Note, Uniform Guardianship and Protective Proceedings Act, 8A U.L.A. 440-442 (1998).
132 See generally Uniform Probate Code §§ 5-501-5-505 (amended 1987), 8 U.L.A. Part II 126-131 (Supp. 2002). The Uniform Guardianship and Protective Proceedings Act (“UGPPA”), as adopted by the National Conference of Commissioners on Uniform State Laws in 1997, is identical to Article V, Parts 1 through 4 of the UPC, adopted in the same year. The UPC contains more than a dozen freestanding acts, such as the UGPPA, to encourage states to adopt specific provisions even if they choose not to adopt the entire code.
133 See generally Uniform Probate Code § 5-202, 8 U.L.A. Part II 71-73 (Supp. 2002). See also 39 Am. Jur. 2d Guardian and Ward § 17 (1999).
134 Id.
135 Though this is generally true, access to legal services for people with HIV varies considerably by geography, income, race, and gender. See generally Jeffrey Selbin & Mark Del Monte, A Waiting Room of Their Own: The Family Care Network as a Model for Providing Gender-Specific Legal Services to Women with HIV, 5 Duke J. Gender L. & Pol’y 103 (1998) (describing the history of legal services to people with HIV, including by race, gender, and income).
136 See generally AIDS Coordination Project, American Bar Ass’n, Directory of Legal Resources for People with HIV/AIDS (3d ed. 2001) (cataloguing the providers of legal services to people with HIV, including a description of the types of services provided), at (visited Dec. 13, 2002).
137 See generally Uniform Probate Code § 5-202, 8 U.L.A. Part II 71-73 (Supp. 2002); see also 39 Am. Jur. 2d Guardian and Ward § 15 (1999).
138 See, e.g., 39 Am. Jur. 2d Guardian and Ward § 18 (1999).
139 See generally Uniform Probate Code § 5-204, 8 U.L.A. Part II 74-76 (Supp. 2002); see also 39 Am. Jur. 2d Guardian and Ward §§ 11-12 (1999).
140 See generally Uniform Probate Code § 5-205-5-206, 8 U.L.A. Part II 74-77 (Supp. 2002); see also 39 Am. Jur. 2d Guardian and Ward § 15 (1999).
141 See, e.g., Erica Bell, Special Issues in Estate Planning for Non-Marital Couples and Non-Traditional Families, 267 Tax Law and Estate Planning Course Handbook Series: Estate Planning and Administration 235 (Practicing Law Inst. ed., Sept. 1998); Craig W. Christensen, Legal Ordering of Family Values: The Case of Gay and Lesbian Families, 18 Cardozo L. Rev. 1299 (1997); William N. Eskridge, Jr., Challenging the Apartheid of the Closet: Establishing Conditions for Lesbian and Gay Intimacy, Nomos and Citizenship, 1961-1981, 25 Hofstra L. Rev. 817 (1997) (describing the explicit discrimination in law against gay and lesbian parents and the implicit discrimination in spite of a transition to more “objective” legal standards).
142 See generally Emily Berendt & Laura Lynn Michaels, Your HIV Positive Client: Easing the Burden on the Family Through Estate Planning, 24 J. Marshall L. Rev. 509, 510-17 (1991) (describing the social and emotional concerns of testators with HIV who face discrimination based on assumptions about their “lifestyle”).
143 See generally Uniform Probate Code §§ 5-206-5-207, 8 U.L.A. Part II 339-344 (1998 & Supp. 2000); see also 39 Am. Jur. 2d Guardian and Ward §§ 22, 41 (1999 & Supp. 2000).
144 See generally Uniform Probate Code §§ 5-204-5-206, 8 U.L.A. Part II 74-77 (Supp. 2002). Petition requirements are generally strict and jurisdictional. See, e.g., In re Guardianship of Raymond E., 609 A.2d 1220 (N.H. 1992) (holding that a volunteer from an AIDS organization did not have standing to file a guardianship petition based on allegations that the child’s HIV-infected mother was physically and mentally incapable of caring for the child, where the volunteer worked for an organization not enumerated in the statute setting forth who may petition for a guardianship based on the unfitness of the parent or current guardian).
145 See generally Uniform Probate Code § 5-205, 8 U.L.A. Part II 76 (Supp. 2002); see also 39 Am. Jur. 2d Guardian and Ward §§ 54-63 (1998).
146 See generally Uniform Probate Code § 5-204(d)-(e), 8 U.L.A. Part II 74-76 (Supp. 2002).
147 See, e.g., David Michaels & Carol Levine, Estimates of the Number of Motherless Youth Orphaned by AIDS in the United States, 268 JAMA 3456 (1992) (projecting the number of children of parents with HIV who will be orphaned in the United States, including their socioeconomic status). Many orphans of parents with HIV have fallen into the child welfare system with its well-documented shortcomings and abuses. See § 13.6.
148 In re Micah Alyn R., 504 S.E.2d 635, 641 (W. Va. 1998).
149 Several states had laws permitting restricted forms of standby guardianship that predated the HIV epidemic. For example, Iowa and Wyoming have virtually identical statutory regimes dating to 1963 and 1985, respectively, that permit the nomination of a standby guardian pursuant to conservator provisions requiring court approval and limited to guardianships of the estate (property). See Iowa Code Ann. §§ 633.560, 633.591-597 (West 1992 & Supp. 2000); Wyo. Stat. Ann. §§ 3-2-108, 3-3-301-306 (Michie 1999). Tennessee has a statute from the early 1990s, as amended in 1997, that allows for appointment of a standby fiduciary. See Tenn. Code Ann. § 34-11-119(c) (2001). Given the narrowness of these statutes, their effectiveness as permanency planning tools for parents with HIV in Iowa, Wyoming, and Tennessee is unclear. Florida has permitted the judicial appointment of standby guardians in certain circumstances since 1974, with amendments in 1990 increasing the availability of standby guardianships as a tool for ill parents/custodians planning for the care of minors. See Fla. Stat. Ann. § 744.304 (West 1997 & Supp. 2000). For more on the standby guardianship regime in Florida, see Richard C. Milstein et al., Planning for Disability, in Basic Estate Planning in Florida (Florida Bar ed., 1998).
150 See N.Y. Surr. Ct. Proc. Act Law § 1726 (McKinney Supp. 2002). For more on the standby guardianship regime in New York, see Alice Herb, Standby Guardianship: A Viable Legal Option for the Future Care of Children, 50 J. Am. Med. Women’s Ass’n 95 (1995).
151 Margaret Valentine Turano, 1996 Practice Commentaries, reprinted as note to N.Y. Surr. Ct. Proc. Act Law § 1726 (McKinney 1996 & Supp. 2000).
152 N.Y. Surr. Ct. Proc. Act Law § 1726(3)(a)–(b) (McKinney Supp. 2002). The primary caretaker may nominate a standby guardian where the parent, legal guardian, or legal custodian cannot be located with due diligence.
153 See id. § 1726(3)(d)(ii).
154 See Conn. Gen. Stat. Ann. § 45a-624 (West Supp. 2000); 755 Ill. Comp. Stat. Ann. 5/11-5.3 (West Supp. 2000); Md. Code Ann., Est. & Trusts §§ 13-901-908 (Supp. 1999). For more on the standby guardianship regime in Illinois, see Linda S. Coon, Illinois Standby and Short-Term Guardianship Law (unpublished article available from the Families and Children’s AIDS Network, telephone: (312) 786-9255). For more on the standby guardianship regime in Maryland, see Joyce E. McConnell, Standby Guardianship: Sharing the Legal Responsibility for Children, 7 Md. J. Contemp. Legal Issues 249 (1995), and two practice guides: Stand-by Guardianship: A Manual for Providers (U. Md. Law School AIDS Law Clinic ed., 1997) and AIDS Advocacy Manual (Whitman Walker Clinic, Inc. ed., 2000).
155 See Mass. Gen. Laws Ann. ch. 201, §§ 2A-2H (West Supp. 2000); N.J. Stat. Ann. §§ 3B:12-67-78 (West Supp. 2000); N.C. Gen. Stat. §§ 35A-1370–1382 (1995 & Supp. 1999). For more on the standby guardianship regime in Massachusetts, see Standby and Emergency Guardianship Proxies: A Manual for Providers and Practitioners (AIDS Action Committee ed., 1996). For more on the standby guardianship regime in New Jersey, see Lenore M. Molee, The Ultimate Demonstration of Love for a Child: Choosing a Standby Guardian under the New Jersey Standby Guardianship Act, 22 Seton Hall Legis. J. 475 (1998).
156 See Neb. Rev. Stat. §§ 30-2601-2616 (1995 & Supp. 2000); 23 Pa. Cons. Stat. Ann. §§ 5601–5616 (West Supp. 2000); Va. Code Ann. §§ 16.1-349-355 (Michie 1999); Wis. Stat. Ann. § 48.978 (West Supp. 2000); Ark. Code Ann. § 28-65-221 (Michie Supp. 1999); W. Va. Code §§ 44A-5-2-9 (Supp. 2000). For more on the standby guardianship regime in Pennsylvania, see Rodney Cunningham, Understanding Pennsylvania’s Standby Guardianship Law (unpublished article available from the AIDS Law Project of Pennsylvania, 1211 Chestnut Street, Suite 1200, Philadelphia, PA 19107; telephone: (215) 587-9377). For more on the standby guardianship regime in Virginia, see AIDS Advocacy Manual (Whitman Walker Clinic, Inc. ed., 2000).
157 Minn. Stat. Ann. §§ 257B.01–.10 (West Supp. 2001).
158 Colo. Rev. Stat. Ann. § 15-14-202(2) (West 1997 & Supp. 2000).
159 Tex. Prob. Code Ann. § 676(d)–(g) (Vernon Supp. 2002).
160 D.C. Code Ann. §§ 16-4801-4810 (Supp. 2002); Ga. Code Ann. §§ 29-4-50 to -55 (Supp. 2002).
161 California’s joint guardianship regime is described further in § 13.10.
162 For an excellent state-by-state analysis of standby guardianship statutes, see Judith Larsen, The ABA Center on Children and the Law, Standby Guardianship Laws: A Guide for Legislators, Lawyers, and Child Welfare Professionals (2000).
163 See CDC, HIV/AIDS Surveillance Report 14 (2002). One other jurisdiction in the United States with large numbers of parents and children with AIDS—Puerto Rico—also lacks the standby guardianship option.
164 See In re Estates of Herrod, 626 N.E.2d 1334 (Ill. App. Ct. 1993). Importantly, the court took judicial notice of the impending effective date of Illinois’ standby guardianship law. But see In re Koeller v. Koeller, 536 N.W.2d 216 (Wis. Ct. App. 1995) (reversing the trial court’s order granting a terminally ill mother’s request to designate a third party to assume custody in the event of her incapacity or death as impermissibly “prospective” and “contingent” in the absence of explicit statutory authority to do so). However, in 1998 Wisconsin enacted such an explicit statutory scheme in the form of its standby guardianship law. Wis. Stat. Ann. § 48.978 (West Supp. 2000).
165 See In re Micah Alyn R., 504 S.E.2d 635, 642 (W. Va. 1998) (noting in footnote 11 that “Unfortunately, our legislature had not enacted standby guardianship statutes” and yet refusing to terminate the parental rights of an HIV-infected mother to her HIV-infected son, in spite of her inability to care for him, when a remedy that both maintained their relationship and developed a permanency plan was available).
166 See W. Va. Code §§ 44A-5-2-9 (Supp. 2000).
167 See H.R. 3005, 105th Cong. (1997); H.R. 709, 104th Cong. (1995); H.R. 1354, 103rd Cong. (1993). For more on the proposed federal approach, see Kelly C. Rozmyus, Representing Families Affected by HIV/AIDS: How the Proposed Federal Standby Guardianship Act Facilitates Future Planning in the Best Interests of the Child and Family, 6 Am. U.J. Gender & L. 299 (1998).
168 Pub. L. No. 105-89, 111 Stat. 2115 (codified in scattered sections of 42 U.S.C.).
169 Id. § 403.
170 See Children’s Bureau, U.S. Department of Health and Human Services, Adoption 2002: The President’s Initiative on Adoption and Foster Care II-14-II-15 (1999) (providing guidelines for public policy and state legislation regarding permanency for children).
171 Uniform Probate Code § 5-202(b), 8 U.L.A. Part II 71 (Supp. 2002).
172 Id. § 5-202(c), 8 U.L.A. Part II 71 (Supp. 2002).
173 Nebraska’s 1998 standby guardianship provisions and Arkansas’s 1999 standby guardianship law are almost identical in form and content to the federal language. See Neb. Rev. Stat. § 30-2608(c) (Supp. 2000); Ark. Code Ann. § 28-65-221 (Michie Supp. 1999).
174 See, e.g., Ark. Code Ann. § 28-65-221 (Michie Supp. 1999); Conn. Gen. Stat. Ann. § 45a-624 (West Supp. 2000); 755 Ill. Comp. Stat. Ann. 5/11-5.3 (West Supp. 2000); Md. Code Ann., Est. & Trusts §§ 13-901-908 (Supp. 1999); Mass. Gen. Laws Ann. ch. 201, §§ 2A-2H (West Supp. 2000); Neb. Rev. Stat. §§ 30-2601-2616 (1995 & Supp. 2000); N.J. Stat. Ann. §§ 3B:12-67-78 (West Supp. 2000); N.C. Gen. Stat. §§ 35A-1370–1382 (1995 & Supp. 1999); Tex. Prob. Code Ann. § 676 (Vernon Supp. 2002); W. Va. Code §§ 44A-5-2-9 (Supp. 2000).
175 See, e.g., Va. Code Ann. §§ 16.1-349-355 (Michie 1999); Wis. Stat. Ann. § 48.978 (West Supp. 2000).
176 See, e.g., Fla. Stat. Ann. § 744.304 (West 1997 & Supp. 2000); 23 Pa. Cons. Stat. Ann. §§ 5601-5616 (West Supp. 2000).
177 For example, in New York the standby guardianship statute is found in the Surrogate Court Procedures Act. N.Y. Surr. Ct. Proc. Act Law § 1726 (McKinney 1996 & Supp. 2000).
178 In many states, procedures vary by local jurisdiction, either as a result of differing court rules or more informal practices. See, e.g., Lauren Shapiro, An HIV Advocate’s View of Family Court: Lessons from a Broken System, 5 Duke J. Gender L. & Pol’y 133 (1998) (describing the disconnect between formal rules and real practice in New York’s Family Court).
179 See, e.g., Conn. Gen. Stat. Ann. § 45a-624 (West Supp. 2000); D.C. Code Ann. § 16-4802(8) (Supp. 2002); Fla. Stat. Ann. § 744.304(2) (West 1997 & Supp. 2000); 755 Ill. Comp. Stat. Ann. 5/11-5.3(a) (West Supp. 2000); Mass. Gen. Laws Ann. ch. 201, § 2B (West Supp. 2000); Minn. Stat. Ann. § 257B.03(a) (West Supp. 2001); N.J. Stat. Ann. § 3B:12-72a (West Supp. 2000); N.C. Gen. Stat. § 35A-1370(10) (1995 & Supp. 1999); 23 Pa. Cons. Stat. Ann. § 5611(a) (West Supp. 2000). In 1994, New York amended its statute to permit legal guardians, in addition to parents, to nominate a standby guardian. N.Y. Surr. Ct. Proc. Act Law § 1726(3)(a) (McKinney Supp. 2002). In 2000, New York added legal custodians and primary caretakers where the parent, legal guardian, or legal custodian cannot be located with due diligence as those who may designate or petition for the appointment of a standby guardian. N.Y. Surr. Ct. Proc. Act Law 1726(3)(a), (4)(a) (McKinney Supp. 2002). Virginia and West Virginia use the term “parent” exclusively throughout the statute, but define that term to include “a person, other than a parent, who has physical custody of a child and who has either been awarded custody by a court or claims a right to custody.” Va. Code Ann. § 16.1-349 (Michie 1999); W. Va. Code § 44A-5-2(f) (Supp. 2000).
180 See Ark. Code Ann. § 28-65-221(a) (Michie Supp. 1999); Md. Code Ann., Est. & Trusts § 13-903(a) (Supp. 1999); Neb. Rev. Stat. § 30-2608(c) (Supp. 2000); Tex. Prob. Code Ann. § 676(d) (Vernon Supp. 2002) (surviving parent only); Wis. Stat. Ann. § 48.978(2)(a) (West Supp. 2000).
181 See Colo. Rev. Stat. Ann. § 15-14-202(2) (West 1997 & Supp. 2000). Md. Code Ann., Est. & Trusts § 13-903(b)(3) (Supp. 1999); Wis. Stat. Ann. § 48.978(2)(b)6 (West Supp. 2000).
182 New York’s 1992 statute was amended in 1994 to substitute a showing of progressively chronic or irreversibly fatal illness for the requirement that the petitioner demonstrate significant risk of incapacitation or death within two years. See N.Y. Surr. Ct. Proc. Act Law § 1726(3)(b)(ii) (McKinney 1996 & Supp. 2000). California’s 1994 joint guardianship law for terminally ill parents was amended in 1996 to remove the two-year requirement. See Cal. Prob. Code § 2105(f) (Deering Supp. 2000). Unfortunately, the Uniform Guardianship and Protective Proceedings Act recommends a required finding that “the appointing parent will likely become unable to care for the child within two years.” Uniform Probate Code § 5-202(b), 8 U.L.A. Part II 71 (Supp. 2002).
183 See N.Y. Surr. Ct. Proc. Act Law § 1726(3)(b)(ii) (McKinney 1996 & Supp. 2000); N.J. Stat. Ann. § 3B:12-72b(2) (West Supp. 2000); N.C. Gen. Stat. § 35A-1373(b)(3) (1995 & Supp. 1999).
184 Va. Code Ann. § 16.1-349 (Michie 1999); W. Va. Code § 44A-5-2(h) (Supp. 2000).
185 Ark. Code Ann. § 28-65-221(a) (Michie Supp. 1999); Neb. Rev. Stat. § 30-2608(c) (Supp. 2000).
185.1 D.C. Code Ann. § 16-4802(8) (Supp. 2002).
186 See Conn. Gen. Stat. Ann. § 45a-624 (West Supp. 2000); Fla. Stat. Ann. § 744.304 (West 1997 & Supp. 2000); Ga. Code Ann. § 29-4-51 (Supp. 2002); 755 Ill. Comp. Stat. Ann. 5/11-5.3 (West Supp. 2000); Mass. Gen. Laws Ann. ch. 201, §§ 2A-2H (West Supp. 2000); Minn. Stat. Ann.§§ 257B.01-.10 (West Supp. 2001); 23 Pa. Cons. Stat. Ann. §§ 5601–5616 (West Supp. 2000); Tex. Prob. Code Ann. § 676 (Vernon Supp. 2002).
187 Md. Code Ann., Est. & Trusts § 13-903(b)(3) (Supp. 1999); Wis. Stat. Ann. § 48.978(2)(b)6 (West Supp. 2000).
188 N.Y. Surr. Ct. Proc. Act Law § 1726.3(b)(ii) (McKinney 1996 & Supp. 2000); N.C. Gen. Stat. § 35A-1373(b)(3) (1995 & Supp. 1999).
188.1 D.C. Code Ann. § 16-4805(b)(4) (Supp. 2002) (does not require “identification of the injury, disease, or illness in question”).
189 N.J. Stat. Ann. § 3B:12-72b(2) (West Supp. 2000); Va. Code Ann. § 16.1-350(B)(5) (Michie 1999); W. Va. Code § 44A-5-3(b)(5) (Supp. 2000). Virginia and West Virginia, however, also require that the petition include the name and address of the attending physician. See Va. Code Ann. § 16.1-350(B)(9) (Michie 1999); W. Va. Code § 44A-5-3(b)(10) (Supp. 2000).
190 See Ark. Code Ann. § 28-65-221 (Michie Supp. 1999); Colo. Rev. Stat. Ann. § 15-14-202 (West 1997 & Supp. 2000); Neb. Rev. Stat. § 30-2608 (Supp. 2000).
191 See, e.g., Conn. Gen. Stat. Ann. § 45a-624b (West Supp. 2000); D.C. Code Ann. § 16-4803 (Supp. 2002); Ga. Code Ann. § 29-4-53 (Supp. 2002); 755 Ill. Comp. Stat. Ann. 5/11-5.3(e) (West Supp. 2000); Md. Code Ann., Est. & Trusts § 13-904 (Supp. 1999); Minn. Stat. Ann. § 257B.04 (West Supp. 2001); N.J. Stat. Ann. § 3B:12-74 (West Supp. 2000); N.Y. Surr. Ct. Proc. Act Law § 1726(4) (McKinney Supp. 2002); N.C. Gen. Stat. § 35A-1374 (1995 & Supp. 1999); 23 Pa. Cons. Stat. Ann. § 5611(c)(4) (West Supp. 2000); Va. Code Ann. § 16.1-352 (Michie 1999); W. Va. Code § 44A-5-5 (Supp. 2000); Wis. Stat. Ann. § 48.978(3)(b) (West Supp. 2000).
192 See, e.g., Conn. Gen. Stat. Ann. § 45a-624 (West Supp. 2000); D.C. Code Ann. § 16-4803(d) (Supp. 2002); Ga. Code Ann. § 29-4-53(a) (Supp. 2002); Md. Code Ann., Est. & Trusts § 13-904 (Supp. 1999); Minn. Stat. Ann. § 257B.04 (West Supp. 2001); N.J. Stat. Ann. § 3B:12-74 (West Supp. 2000); N.Y. Surr. Ct. Proc. Act Law § 1726(4) (McKinney Supp. 2002); N.C. Gen. Stat. § 35A-1374 (1995 & Supp. 1999); 23 Pa. Cons. Stat. Ann. § 5611 (West Supp. 2000); Va. Code Ann. § 16.1-352 (Michie 1999) (no witness required); W. Va. Code § 44A-5-5 (Supp. 2000); Wis. Stat. Ann. § 48.978(3) (West Supp. 2000). Although Illinois and Massachusetts provide for the non-judicial “designation” of a standby guardian, the designated standby guardian’s authority does not commence until judicial appointment is made. See 755 Ill. Comp. Stat. Ann. 5/11-5.3 (West Supp. 2000); Mass. Gen. Laws Ann. ch. 201, § 2B (West Supp. 2000). However, both of these “weak” designation states also have separate and similar designation-like provisions for the private appointment of “short-term” and “emergency” guardians, respectively, for a period not to exceed 60 days. See 755 Ill. Comp. Stat. Ann. 5/11-5.4 (West Supp. 2000); Mass. Gen. Laws Ann. ch. 201, §§ 2G-H (West Supp. 2000). In 1992, Florida added a process analogous to designation with the enactment of a “preneed guardian for minor” statute. Fla. Stat. Ann. § 744.3046 (West 1997). Arkansas and Nebraska do not permit non-judicial appointment of a standby guardian. See Ark. Code Ann. § 28-65-221 (Michie Supp. 1999); Neb. Rev. Stat. §§ 30-2601-2616 (1995 & Supp. 2000).
193 See, e.g., D.C. Code Ann. § 16-4803(c) (Supp. 2002); Ga. Code Ann. § 29-4-53(b) (Supp. 2002); Md. Code Ann., Est. & Trusts § 13-904(a)(2)(i) (Supp. 1999); Minn. Stat. Ann. § 257B.04(2) (West Supp. 2001); N.J. Stat. Ann. § 3B:12-74a(2) (West Supp. 2000); N.Y. Surr. Ct. Proc. Act Law § 1726(4)(a) (McKinney Supp. 2002); N.C. Gen. Stat. § 35A-1374(a) (1995 & Supp. 1999); 23 Pa. Cons. Stat. Ann. § 5611(c)(2) (West Supp. 2000); Va. Code Ann. § 16.1-352(A) (Michie 1999); W. Va. Code § 44A-5-5(a) (Supp. 2000); Wis. Stat. Ann. § 48.978(3)(a) (Supp. 2000).
194 See Md. Code Ann., Est. & Trusts § 13-904(a)(1)(ii) (Supp. 1999); Minn. Stat. Ann. § 257B.04(1) (West Supp. 2001); 23 Pa. Cons. Stat. Ann. § 5611(c)(1) (West Supp. 2000); Wis. Stat. Ann. § 48.978(3)(a) (West Supp. 2000).
195 See Ark. Code Ann. § 28-65-221(a)(1) (Michie Supp. 1999); Conn. Gen. Stat. Ann. § 45a-624 (West Supp. 2000); D.C. Code Ann. § 16-4802(13)(C) (Supp. 2002); Fla. Stat. Ann. § 744.304(3) (West 1997 & Supp. 2000); 755 Ill. Comp. Stat. Ann. 5/11-13.1(b)(i) (West Supp. 2000); Md. Code Ann., Est. & Trusts § 13-901(e)(1) (Supp. 1999); Mass. Gen. Laws Ann. ch. 201, § 2D (West Supp. 2000); Minn. Stat. Ann. § 257B.01(12) (West Supp. 2001); Neb. Rev. Stat. § 30-2608(c)(1) (Supp. 2000); N.J. Stat. Ann. § 3B:12-72d (West Supp. 2000); N.Y. Surr. Ct. Proc. Act Law § 1726(4)(b)(i)(C) (McKinney 1996 & Supp. 2000); N.C. Gen. Stat. § 35A-1373(b)(2) (1995 & Supp. 1999); 23 Pa. Cons. Stat. Ann. § 5612(a)(3) (West Supp. 2000); Tex. Prob. Code Ann. § 676(e) (Vernon Supp. 2002); Va. Code Ann. § 16.1-351 (Michie 1999); W. Va. Code § 44A-5-4(c)(i) (Supp. 2000); Wis. Stat. Ann. § 48.978(2)(k)2 (West Supp. 2000).
196 See Ark. Code Ann. § 28-65-221(a)(2) (Michie Supp. 1999); Conn. Gen. Stat. Ann. § 45a-624 (West Supp. 2000); D.C. Code Ann. § 16-4802(13)(B) (Supp. 2002); Fla. Stat. Ann. § 744.304(3) (West 1997 & Supp. 2000); 755 Ill. Comp. Stat. Ann. 5/11-13.1(b)(ii) (West Supp. 2000); Md. Code Ann., Est. & Trusts § 13-901(e)(1) (Supp. 1999); Mass. Gen. Laws Ann. ch. 201, § 2D (West Supp. 2000); Minn. Stat. Ann. § 257B.01(11) (West Supp. 2001); Neb. Rev. Stat. § 30-2608(c)(2) (Supp. 2000); N.J. Stat. Ann. § 3B:12-72d (West Supp. 2000); N.Y. Surr. Ct. Proc. Act Law § 1726(4)(b)(i)(A) (McKinney 1996 & Supp. 2000); N.C. Gen. Stat. § 35A-1373(b)(2) (1995 & Supp. 1999); 23 Pa. Cons. Stat. Ann. § 5612(a)(1) (West Supp. 2000); Tex. Prob. Code Ann. § 676(d) (Vernon Supp. 2002); Va. Code Ann. § 16.1-351 (Michie 1999); W. Va. Code § 44A-5-4(c)(i) (Supp. 2000); Wis. Stat. Ann. § 48.978(2)(k)2 (West Supp. 2000). Some states define incapacity more broadly to include physical incapacity. See, e.g., Fla. Stat. Ann. § 744.102(10) (West 1997 & Supp. 2001); Mass. Gen. Laws Ann. ch. 201, § 2D (West Supp. 2000); Md. Code Ann., Est. & Trusts § 13-904(b)(2) (Supp. 1999). Georgia requires a determination that the designator “is unable to care for a minor due to the designating individual’s physical or mental condition or health including a condition created by medical treatment.” Ga. Code Ann. § 29-4-51(3) (Supp. 2002).
197 See, e.g., Ark. Code Ann. § 28-65-221(a)(3) (Michie Supp. 1999); D.C. Code Ann. § 16-4802(13)(A) (Supp. 2002); Md. Code Ann., Est. & Trusts § 13-904(b)(2) (Supp. 1999); Minn. Stat. Ann. § 257B.01(12) (West Supp. 2001); Neb. Rev. Stat. § 30-2608(c)(3) (Supp. 2000); N.J. Stat. Ann. § 3B:12-69 (West Supp. 2000); N.Y. Surr. Ct. Proc. Act Law § 1726(4)(b)(i)(B) (McKinney Supp. 2002); N.C. Gen. Stat. § 35A-1373(b)(2) (1995 & Supp. 1999); 23 Pa. Cons. Stat. Ann. § 5612(a)(2) (West Supp. 2000); Va. Code Ann. § 16.1-352(B) (Michie 1999); W. Va. Code § 44A-5-2(j) (Supp. 2000); Wis. Stat. Ann. § 48.978(2)(k)2 (West Supp. 2000).
198 See, e.g., 755 Ill. Comp. Stat. Ann. 5/11-13.1(b)(i) (West Supp. 2000); Md. Code Ann., Est. & Trusts § 13-903(e)(3) (Supp. 1999); Mass. Gen. Laws Ann. ch. 201, § 2D (West Supp. 2000); Minn. Stat. Ann. § 257B.06 (West Supp. 2001); N.Y. Surr. Ct. Proc. Act Law § 1726(3)(e)(iii) (McKinney 1996 & Supp. 2000); N.C. Gen. Stat. § 35A-1373(b)(2) (1995 & Supp. 1999); 23 Pa. Cons. Stat. Ann. § 5613(a) (West Supp. 2000); Va. Code Ann. § 16.1-351 (Michie 1999); W. Va. Code § 44A-5-4(c)(ii) (Supp. 2000).
199 See Md. Code Ann., Est. & Trusts § 13-903(e)(3) (Supp. 1999); N.Y. Surr. Ct. Proc. Act Law § 1726(3)(e)(iii) (McKinney 1996 & Supp. 2000); Va. Code Ann. § 16.1-351 (Michie 1999); W. Va. Code § 44A-5-4(c)(ii) (Supp. 2000).
200 See Minn. Stat. Ann. § 257B.04(1) (West Supp. 2001); 23 Pa. Cons. Stat. Ann. § 5611(c)(1) (West Supp. 2000).
201 Md. Code Ann., Est. & Trusts § 13-906(a) (Supp. 1999); N.J. Stat. Ann. §§ 3B:12–69, 3B:12–73 (West Supp. 2000); N.Y. Surr. Ct. Proc. Act Law § 1726(6)(a) (McKinney 1996 & Supp. 2000); N.C. Gen. Stat. § 35A-1375(b)(3) (1995 & Supp. 1999); Wis. Stat. Ann. § 48.978(4) (West Supp. 2000).
202 See, e.g., D.C. Code Ann. § 16-4806(c)(3) (Supp. 2002); Md. Code Ann., Est. & Trusts § 13-903(e)(2)(ii) (Supp. 1999); Minn. Stat. Ann. § 257B.05(3) (West Supp. 2001); N.J. Stat. Ann. § 3B:12–73c (West Supp. 2000); N.Y. Surr. Ct. Proc. Act Law §§ 1726(3)(e)(ii), 1726(4)(d)(ii)(C) (2003 N.Y. Laws, ch. 632, § 1) (also allows the filing of other evidence of death in lieu of a death certificate); 23 Pa. Cons. Stat. Ann. § 5612(a)(3) (West Supp. 2000); Va. Code Ann. § 16.1-351 (Michie 1999); W. Va. Code § 44A-5-4(f) (Supp. 2000); Wis. Stat. Ann. § 48.978(2)(L)4 (West Supp. 2000). For more on the scope of protection for HIV information under state confidentiality statutes, see supplement § 2.28.
203 See Minn. Stat. Ann. § 257B.06(4) (West Supp. 2001); N.Y. Surr. Ct. Proc. Act Law § 1726(4)(c) (McKinney Supp. 2002); 23 Pa. Cons. Stat. Ann. § 5613(b) (West Supp. 2000); Md. Code Ann., Est. & Trusts § 13-904(e) (Supp. 1999); Wis. Stat. Ann. § 48.978(3)(c)4 (West Supp. 2000). North Carolina requires that a petition be filed within 90 days of a triggering event authorizing a designated standby guardian to act. See N.C. Gen. Stat. § 35A-1374(e) (1995 & Supp. 1999).
204 See N.J. Stat. Ann. § 3B:12-76 (West Supp. 2000). It would appear, therefore, that in New Jersey a new designation is required every six months to ensure that the standby guardian will be authorized to act upon the occurrence of a triggering event.
205 See Va. Code Ann. § 16.1-352(D) (Michie 1999); W. Va. Code § 44A-5-5(d) (Supp. 2000).
205.1 See D.C. Code Ann. § 16-4807(b)(1) (Supp. 2002).
206 The designated standby guardian’s authority in Connecticut is valid for 90 days following death and up to one year following the other statutorily-permitted triggering events (mental incapacity or physical debilitation). See Conn. Gen. Stat. Ann. §§ 45a-624d-e (West Supp. 2000). The one-year provision for non-death contingencies was added by amendment in 1995.
206.1 Ga. Code Ann. § 29-4-55(a) (Supp. 2002).
207 For example, in North Carolina, notice of the standby guardianship is due the non-custodial parent only during the petition process, not the designation process. See N.C. Gen. Stat. §§ 35A-1374–1375 (1995 & Supp. 1999).
208 See D.C. Code Ann. § 16-4806(f) (Supp. 2002); Minn. Stat. Ann. § 257B.05(4) (West Supp. 2001); N.J. Stat. Ann. § 3B:12–76(b) (West Supp. 2000); 23 Pa. Cons. Stat. Ann. § 5612(d) (West Supp. 2000); cf. Tex. Prob. Code Ann. § 676(e) (Vernon Supp. 2002).
209 See Ark. Code Ann. § 28-65-221(a) (Michie Supp. 1999); Colo. Rev. Stat. Ann. § 15-4-202(2) (West 1997 & Supp. 2000); D.C. Code Ann. § 16-4806 (Supp. 2002); Fla. Stat. Ann. § 744.304(2) (West 1997 & Supp. 2000); Ga. Code Ann. § 29-4-55 (Supp. 2002); 755 Ill. Comp. Stat. Ann. 5/11-5.3(b) (West Supp. 2000); Md. Code Ann., Est. & Trusts § 13-903(a)(3) (Supp. 1999); Mass. Gen. Laws Ann. ch. 201, § 2C (West Supp. 2000); Minn. Stat. Ann. § 257B.05 (West Supp. 2001); Neb. Rev. Stat. § 30-2608(c) (Supp. 2000); N.J. Stat. Ann. § 3B:12-72a (West Supp. 2000); N.Y. Surr. Ct. Proc. Act Law § 1726(3)(d)(i) (McKinney 1996 & Supp. 2000); N.C. Gen. Stat. § 35A-1373(f) (1995 & Supp. 1999); 23 Pa. Cons. Stat. Ann. § 5612(a) (West Supp. 2000); Va. Code Ann. § 16.1-350(A) (Michie 1999); W. Va. Code § 44A-5-3(a) (Supp. 2000); Wis. Stat. Ann. § 48.978(2)(j) (West Supp. 2000). Connecticut provides for nonjudicial designation only of a standby guardian. See Conn. Gen. Stat. Ann. § 45a-624 (West Supp. 2000). However, Connecticut also permits judicial appointment of co-guardians, including a parent, which is similar in many respects to a standby guardianship. See Conn. Gen. Stat. Ann. §§ 45a-616–617 (West Supp. 2000). For more on co-guardianship in Connecticut, see § 13.10. The relevant Texas guardianship statute does not allow for a judicial standby guardianship appointment or its equivalent. See Tex. Prob. Code Ann. § 676 (Vernon Supp. 2002).
210 See, e.g., D.C. Code Ann. § 16-4805(a)(3) (Supp. 2002); 755 Ill. Comp. Stat. Ann. 5/11-8.1 (West Supp. 2000); Md. Code Ann., Est. & Trusts § 13-903(b) (Supp. 1999); Minn. Stat. Ann. § 257B.04(1); N.J. Stat. Ann. § 3B:12-72b (West Supp. 2000); N.Y. Surr. Ct. Proc. Act Law § 1726(3)(b) (McKinney Supp. 2002); N.C. Gen. Stat. § 35A-1373(b) (1995 & Supp. 1999); Va. Code Ann. § 16.1-350(B) (Michie 1999); W. Va. Code § 44A-5-3(b) (Supp. 2000); Wis. Stat. Ann. § 48.978(2)(b) (West Supp. 2000). Massachusetts specifies the contents of the affidavit accompanying a petition. See Mass. Gen. Laws Ann. ch. 201, § 2C (West Supp. 2000). North Carolina requires that the petition be “verified . . . in front of a notary public or another person authorized to administer oaths.” N.C. Gen. Stat. § 35A-1373(b)(5) (1995 & Supp. 1999). Pennsylvania requires the filing of the designation with its prescribed contents. See 23 Pa. Cons. Stat. Ann. § 5612(a) (West Supp. 2000).
211 See Ark. Code Ann. § 28-65-221 (Michie Supp. 1999); Colo. Rev. Stat. Ann. § 15-14-202 (West 1997 & Supp. 2000); Fla. Stat. Ann. § 744.304 (West 1997 & Supp. 2000); Ga. Code Ann. § 29-4-55 (Supp. 2002); Neb. Rev. Stat. §§ 30-2601-2616 (1995 & Supp. 2000).
212 See D.C. Code Ann. § 16-4806(1) (Supp. 2002); Md. Code Ann., Est. & Trusts § 13-903(c) (Supp. 1999); Mass. Gen. Laws Ann. ch. 201, § 2C (West Supp. 2000); Minn. Stat. Ann. § 257B.05(7) (West Supp. 2001); N.J. Stat. Ann. § 3B:12-72c (West Supp. 2000); N.Y. Surr. Ct. Proc. Act Law § 1726(3)(c) (McKinney 1996 & Supp. 2000); 23 Pa. Cons. Stat. Ann. § 5612(g) (West Supp. 2000); Va. Code Ann. § 16.1-350(C) (Michie 1999); W. Va. Code § 44A-5-3(e) (Supp. 2000); Wis. Stat. Ann. §§ 48.978(2)(i), 48.978(3)(i) (West Supp. 2000).
213 Id.
214 N.C. Gen. Stat. § 35A-1373(e) (1995 & Supp. 1999). In North Carolina, clerks of superior court in their respective counties have jurisdiction over guardianship matters. See N.C. Gen. Stat. § 35A-1203 (1995 & Supp. 1998).
215 See Mass. Gen. Laws Ann. ch. 201, § 2C (West Supp. 2000).
216 See N.Y. Surr. Ct. Proc. Act Law § 1726(8)(b) (McKinney Supp. 2002). New Jersey also permits disclosure to the minor or the minor’s legal representative upon request. See N.J. Stat. Ann. § 3B:12-78b (West Supp. 2000).
217 See Ark. Code Ann. § 28-65-221(b)(1) (Michie Supp. 1999).
218 Fla. Stat. Ann. § 744.304(4) (West 1997 & Supp. 2000). If the standby guardian is qualified under Florida’s general guardianship provisions at §§ 744.309 and 744.312, the appointment must be confirmed.
219 Colo. Rev. Stat. Ann. § 15-14-202(4) (West 1997 & Supp. 2000).
220 See Va. Code Ann. §§ 16.1-351, 16.1-353 (Michie 1999); W. Va. Code §§ 44A-5-4(f), 44A-5-6 (Supp. 2000).
221 See 755 Ill. Comp. Stat. Ann. 5/11-13.1(c) (West Supp. 2000); N.J. Stat. Ann. § 3B:12-73c-d (West Supp. 2000). In New Jersey, confirmation shall be made “unless there is a judicial determination of unfitness with regard to the standby guardian.” Id.
222 See Md. Code Ann., Est. & Trusts § 13-903(e)(3) (Supp. 1999); N.Y. Surr. Ct. Proc. Act Law § 1726(3)(e)(i)-(iii) (McKinney 1996 & Supp. 2000); N.C. Gen. Stat. § 35A-1373(g)-(l) (1995 & Supp. 1999); Wis. Stat. Ann. § 48.978(2)(L)4 (West Supp. 2000).
223 See Mass. Gen. Laws Ann. ch. 201, § 2D (West Supp. 2000).
224 See Minn. Stat. Ann. § 257B.05-06 (West Supp. 2001); 23 Pa. Cons. Stat. Ann. § 5613(b) (West Supp. 2000).
224.1 D.C. Code Ann. § 16-4806(c) (Supp. 2002).
224.2 D.C. Code Ann. § 16-4807(a) (Supp. 2002).
224.3 D.C. Code Ann. § 16-4810(e) (Supp. 2002).
224.4 Ga. Code Ann. § 29-4-55(c) (Supp. 2002).
225 See, e.g., D.C. Code Ann. § 16-4806(a) (Supp. 2002); 755 Ill. Comp. Stat. Ann. 5/11-5.3(b) (West Supp. 2000); Md. Code Ann., Est. & Trusts §§ 13-903(d)(1), 13-904(g)(3) (Supp. 1999); Minn. Stat. Ann. § 257B.05(6) (West Supp. 2001); N.C. Gen. Stat. § 35A-1373(f) (1995 & Supp. 1999); N.Y. Surr. Ct. Proc. Act Law § 1726(3)(d)(i) (McKinney 1996 & Supp. 2000). North Carolina also requires a showing that the proposed standby guardian is fit to serve. See N.C. Gen. Stat. § 35A-1373(f) (1995 & Supp. 1999). For more on the “best interests” standard and common criteria thereunder, see § 13.5.
226 Standby guardianship statutes in Arkansas, Maryland, Massachusetts, Minnesota, New Jersey, New York, Pennsylvania, and Wisconsin all specify that the general rules governing guardianships apply equally to standby guardianships. See Ark. Code Ann. § 28-65-221(a) (Michie Supp. 1999); Md. Code Ann., Est. & Trusts § 13-903 (Supp. 1999); Mass. Gen. Laws Ann. ch. 201, § 2A (West Supp. 2000); Minn. Stat. Ann. § 257B.02 (West Supp. 2001); N.J. Stat. Ann. § 3B:12–71 (West Supp. 2000); N.Y. Surr. Ct. Proc. Act Law § 1726(2) (McKinney 1996 & Supp. 2000); 23 Pa. Cons. Stat. Ann. § 5603 (West Supp. 2000); Wis. Stat. Ann. § 48.978(7) (West Supp. 2000).
227 See In re Guardianship of Rene O.C., 606 N.Y.S.2d 872 (N.Y. Surr. Ct. 1993). Importantly, the judge was particularly concerned about the competence of the HIV-infected petitioner who died shortly after filing and who executed the petition contemporaneously with the physician’s determination of his incapacity. Id. at 873. In another case involving an HIV-infected parent in New York, the Surrogate Court held that a hearing was required, even on an uncontested petition for appointment of a standby guardian, to determine: (1) the condition and needs of child, (2) that the nominee was fit and capable of caring for child, and (3) that the medical condition of the petitioning parent had not caused an impairment of his or her judgment. In re Guardianship of F.H., 632 N.Y.S.2d 777 (N.Y. Surr. Ct. 1995). Ironically, the court’s decision to require a hearing was based in part on its reading of the section of the New York standby guardianship law that waived appearance at a hearing by ill parents and guardians. The court reasoned that by waiving appearance at such a hearing, the statute “appears to contemplate” one. Id. at 778.
228 See Colo. Rev. Stat. Ann. § 15-14-202(2) (West 1997 & Supp. 2000); N.J. Stat. Ann. § 3B:12-77 (West Supp. 2000); Wis. Stat. Ann. § 48.978(2)(h)3, (3)(h)3 (West Supp. 2000).
229 For example, Florida requires the court to “consider the preference of a minor who is age 14 or over as to who should be appointed guardian.” Fla. Stat. Ann. § 744.312(3)(b) (West 1997), incorporated by reference at Fla. Stat. Ann. § 744.304(4) (West 1997 & Supp. 2000).
230 See Colo. Rev. Stat. Ann. §§ 15-14-202(2), 203(2) (West 1997 & Supp. 2000); Va. Code Ann. § 16.1-350(C) (Michie 1999).
231 See 755 Ill. Comp. Stat. Ann. 5/11-10.1(a) (West Supp. 2000); Neb. Rev. Stat. § 30-2611(a)(1) (1995 & Supp. 2000); N.J. Stat. Ann. § 3B:12-77 (West Supp. 2000); W. Va. Code § 44A-5-3(c) (Supp. 2000).
232 See N.Y. Surr. Ct. Proc. Act Law § 1705(1)(c) (McKinney 1996 & Supp. 2000).
233 See, e.g., N.J. Stat. Ann. § 3B:12-77 (West Supp. 2000); Neb. Rev. Stat. § 30-2611(d) (1995 & Supp. 2000); 755 Ill. Comp. Stat. Ann. 5/11-10.1(b) (West Supp. 2000); Va. Code Ann. § 16.1-350(C) (Michie 1999); W. Va. Code § 44A-5-3(e) (Supp. 2000).
234 See Va. Code Ann. § 16.1-350(C) (Michie 1999); W. Va. Code § 44A-5-3(e) (Supp. 2000).
235 States articulate this principle in two ways, either by stating that the designation or appointment of a standby guardian does not by itself divest the parent of any rights or by affirming that the standby guardian’s authority is concurrent with that of the parent. See, e.g., Ark. Code Ann. § 28-65-221(a) (Michie Supp. 1999); D.C. Code Ann. §§ 16-4804(a), (c)-(d), 16-4807(d) (Supp. 2002); Md. Code Ann., Est. & Trusts § 13-907 (Supp. 1999); Mass. Gen. Laws Ann. ch. 201, § 2D (West Supp. 2000); Minn. Stat. Ann. § 257B.06(1) (West Supp. 2001); Neb. Rev. Stat. § 30-2608(c) (Supp. 2000); N.Y. Surr. Ct. Proc. Act Law § 1726(7) (McKinney 1996 & Supp. 2000); N.C. Gen. Stat. § 35A-1377 (1995 & Supp. 1999); 23 Pa. Cons. Stat. Ann. § 5613(a) (West Supp. 2000); Va. Code Ann. § 16.1-349 (Michie 1999); W. Va. Code § 44A-5-2(i) (Supp. 2000); Wis. Stat. Ann. § 48.978(6) (West Supp. 2000). New Jersey’s statute specifies that the authority of the standby guardian shall be shared with the parent unless the petition for standby guardianship states otherwise. See N.J. Stat. Ann. § 3B:12-73f (West Supp. 2000).
236 See Colo. Rev. Stat. Ann. § 15-14-202(4)(b) (West 1997 & Supp. 2000); Md. Code Ann., Est. & Trusts § 13-906(c) (Supp. 1999); N.Y. Surr. Ct. Proc. Act Law § 1726(6)(c) (McKinney 1996 & Supp. 2000); 1375(d); N.C. Gen. Stat. § 35A-1375(d) (1995 & Supp. 1999); Wis. Stat. Ann. § 48.978(4)(c) (West Supp. 2000). These states additionally require that the standby guardian inform the parent of her right to terminate and/or otherwise suspend the standby guardianship.
237 “A co-guardian shall assure frequent and continuing contact with and physical access to the child and shall further assure the involvement of the parent, to include, to the greatest extent possible, in the decision making on behalf of the child.” 23 Pa. Cons. Stat. Ann. § 5613(a) (West Supp. 2000); see D.C. Code Ann. § 16-4804(d) (Supp. 2002); Minn. Stat. Ann. § 257B.06(3) (West Supp. 2001).
238 See Jeffrey Selbin & Mark Del Monte, A Waiting Room of Their Own: The Family Care Network as a Model for Providing Gender-Specific Legal Services to Women with HIV, 5 Duke J. Gender L. & Pol’y 103, 114–19 (1998) (describing the HIV epidemic’s impact on women, including the fact that most women with HIV in the United States have dependent children for whom they are the sole providers).
239 For a few of the many descriptions of actual permanency planning cases involving HIV-infected parents, see generally Lauren Shapiro, An HIV Advocate’s View of Family Court: Lessons from a Broken System, 5 Duke J. Gender L. & Pol’y 133 (1998); Susan L. Waysdorf, Families in the AIDS Crisis: Access, Equality, Empowerment, and the Role of Kinship Caregivers, 3 Tex. J. Women & L. 145 (1994); Deborah Weimer, Implementation of Standby Guardianship: Respect for Family Autonomy, 100 Dick. L. Rev. 65 (1995).
240 See Fla. Stat. Ann. § 744.304(1) (West 1997 & Supp. 2000).
241 See id. Though not a case involving the previously terminated rights of a parent, a Florida appellate court held that a trial court lacks jurisdiction to proceed under the standby guardianship statute if one parent refuses to consent even if the other parent has been granted custody. See Lusker v. Guardianship of Lusker, 434 So. 2d 951 (Fla. Dist. Ct. App. 1983).
242 Tex. Prob. Code Ann. § 676(d) (Vernon Supp. 2002).
243 See Conn. Gen. Stat. Ann. § 45a-624a (West Supp. 2000); 755 Ill. Comp. Stat. Ann. 5/11-5.3(c) (West Supp. 2000); Md. Code Ann., Est. & Trusts § 13-903(a)(1) (Supp. 1999); Minn. Stat. Ann. § 257B.03(a) (West Supp. 2001); 23 Pa. Cons. Stat. Ann. § 5611(a)(1) (West Supp. 2000). Nebraska expressly includes parental abandonment as an additional exception. See Neb. Rev. Stat. § 30-2608(a) (Supp. 2000).
244 See 755 Ill. Comp. Stat. Ann. 5/11-5.3(c) (West Supp. 2000); Md. Code Ann., Est. & Trusts § 13-903(a)(2) (Supp. 1999); Minn. Stat. Ann. § 257B.03(a)(2) (West Supp. 2001); 23 Pa. Cons. Stat. Ann. § 5611(a)(2) (West Supp. 2000); Wis. Stat. Ann. § 48.978(2)(a)2 (West Supp. 2000). Maryland and Wisconsin require “reasonable efforts” and “reasonable diligence,” respectively, in locating the other parent before the consent requirement can be waived. Md. Code Ann., Est. & Trusts § 13-903(a)(2) (Supp. 1999); Wis. Stat. Ann. § 48.978(2)(a)2 (West Supp. 2000).
245 See Colo. Rev. Stat. Ann. § 15-14-204(2)(c) (West 1997 & Supp. 2000); 755 Ill. Comp. Stat. Ann. 5/11-5.3(c) (West Supp. 2000); Minn. Stat. Ann. § 257B.03(a)(3) (West Supp. 2001); 23 Pa. Cons. Stat. Ann. § 5611(a)(3) (West Supp. 2000); Wis. Stat. Ann. § 48.978(2)(a)3 (West Supp. 2000). Massachusetts has almost identical language to Illinois and Pennsylvania regarding these exceptions in the section regarding emergency standby guardians that does not appear to apply to regular standby guardians. See Mass. Gen. Laws Ann. ch. 201, § 2G (West Supp. 2000); see also Standby and Emergency Guardianship Proxies: A Manual for Providers and Practitioners (AIDS Action Committee ed., 1996) (suggesting that the emergency provisions with regard to the waiver of consent do not apply to the non-emergency standby provisions).
246 See 755 Ill. Comp. Stat. Ann. 5/11-5.3(c) (West Supp. 2000). In New Jersey and Pennsylvania, in a proceeding for judicial appointment of a standby guardian, a validly executed designation constitutes a rebuttable presumption that the designated standby guardian is capable of serving as a guardian. However, both statutes make clear that this presumption is subject to the rights of any parent who has not had such rights terminated. See N.J. Stat. Ann. § 3B:12-76(b) (West Supp. 2000); 23 Pa. Cons. Stat. Ann. § 5612(d) (West Supp. 2000).
247 For example, New Jersey, New York, North Carolina, Virginia, and West Virginia do not require consent but do have notice requirements. See N.J. Stat. Ann. § 3B:12-72f (West Supp. 2000); N.Y. Surr. Ct. Proc. Act Law § 1705 (McKinney 1996 & Supp. 2000); N.C. Gen. Stat. § 35A-1373(d) (1995 & Supp. 1999); Va. Code Ann. § 16.1-350(C) (Michie 1999); W. Va. Code § 44A-5-3(b) (Supp. 2000).
248 See Minn. Stat. Ann. § 257B.05(2) (West Supp. 2001); N.J. Stat. Ann. § 3B:12-72f (West Supp. 2000); 23 Pa. Cons. Stat. Ann. § 5612(b)(2) (West Supp. 2000).
249 N.Y. Surr. Ct. Proc. Act Law § 1705(2) (McKinney 1996 & Supp. 2000). Incredibly, New York appears to waive notice to out-of-state parents. See N.Y. Surr. Ct. Proc. Act Law § 1705(1)(a) (McKinney 1996 & Supp. 2000).
250 See N.C. Gen. Stat. § 35A-1373(c) (1995 & Supp. 1999).
251 See Minn. Stat. Ann. § 257B.04(4) (West Supp. 2001); N.J. Stat. Ann. § 3B:12-72f (West Supp. 2000); 23 Pa. Cons. Stat. Ann. § 5612(b)(2) (West Supp. 2000); Wis. Stat. Ann. § 48.978(2)(c)2 (West Supp. 2000).
251.1 D.C. Code Ann. § 16-4808(e) (Supp. 2002).
251.2 Ga. Code Ann. § 29-4-51(1)(A) (Supp. 2002).
252 See Va. Code Ann. § 16.1-350(C) (Michie 1999); W. Va. Code § 44A-5-3(c) (Supp. 2000). For example, in West Virginia “the notice must be accompanied by a copy of the petition and shall be mailed by certified mail return receipt requested . . . and should include a statement that no change in custody or other legal rights is effected by the appointment of a standby guardian and that it is not necessary for the recipient of the notice to appear. The notice should also state that any parent may request a hearing on the petition provided that such request is made within ten days from the date the notice was sent.” W. Va. Code § 44A-5-3(c) (Supp. 2000).
253 See 755 Ill. Comp. Stat. Ann. 5/11-10.1 (West Supp. 2000).
254 See Wis. Stat. Ann. § 48.978(2)(c)2 (West Supp. 2000).
255 See Minn. Stat. Ann. § 257B.05(2) (West Supp. 2001); 23 Pa. Cons. Stat. Ann. § 5612(b)(1) (West Supp. 2000); N.J. Stat. Ann. § 3B:12-72f (West Supp. 2000).
256 See generally Uniform Probate Code § 5-210, 8 U.L.A. Part II 80 (Supp. 2002).
257 See N.C. Gen. Stat. § 35A-1373(d) (1995 & Supp. 1999).
258 See id.
259 See Va. Code Ann. § 16.1-350(C) (Michie 1999); W. Va. Code § 44A-5-3(d) (Supp. 2000).
259.1 D.C. Code Ann. § 16-4806(i)(1) (Supp. 2002).
260 See Va. Code Ann. § 16.1-355 (Michie 1999); W. Va. Code § 44A-5-8 (Supp. 2000).
261 See, e.g., Conn. Gen. Stat. Ann. § 45a-624f (West Supp. 2000); D.C. Code Ann. § 16-4810(a), (b) (Supp. 2002); Ga. Code Ann. § 29-4-54 (Supp. 2002); Md. Code Ann., Est. & Trusts §§ 13-904(h), 13-903(f) (Supp. 1999); Mass. Gen. Laws Ann. Ch. 201, § 2E (West Supp. 2000); Minn. Stat. Ann. § 257B.07 (West Supp. 2001); N.J. Stat. Ann. §§ 3B:12-75e, 3B:12-73g (West Supp. 2000); N.Y. Surr. Ct. Proc. Act Law §§ 1726(4)(f), 1726(3)(f) (McKinney Supp. 2002); N.C. Gen. Stat. § 35A-1373(m) (1995 & Supp. 1999); 23 Pa. Cons. Stat. Ann. §§ 5614(a), 5613(b) (West Supp. 2000); Va. Code Ann. § 16.1-354(A), (B) (Michie 1999); W. Va. Code § 44A-5-7(a), (b) (Supp. 2000); Wis. Stat. Ann. §§ 48.978(2)(n)4-5, 48.978(3)(j) (West Supp. 2000).
262 Minnesota, New Jersey, and Pennsylvania permit unwritten revocation if proven by “clear and convincing evidence.” Minn. Stat. Ann. § 257B.07(3) (West Supp. 2001); N.J. Stat. Ann. § 3B:12-73g (West Supp. 2000); 23 Pa. Cons. Stat. Ann. § 5614(c) (West Supp. 2000).
263 See D.C. Code § 16-4810(c) (Supp. 2002); Va. Code Ann. § 16.1-354(B) (Michie 1999); W. Va. Code § 44A-5-7(b) (Supp. 2000).
264 See, e.g., Md. Code Ann. Est. & Trusts §§ 13-904(i), 13-903(g) (Supp. 1999); N.J. Stat. Ann. § 3B:12-73e (West Supp. 2000); N.Y. Surr. Ct. Proc. Act Law § 1726(3)(g) (McKinney 1996 & Supp. 2000); N.C. Gen. Stat. § 35A-1373(n) (1995 & Supp. 1999); Va. Code Ann. §§ 16.1-354(B), 16.1-354(A) (Michie 1999); W. Va. Code §§ 44A-5-7(a), (b) (Supp. 2000); Wis. Stat. Ann. §§ 48.978(2)(n)2-3, (3)(k) (West Supp. 2000).
265 See N.Y. Surr. Ct. Proc. Act Law § 1726(3)(g) (McKinney 1996 & Supp. 2000).
266 See Va. Code Ann. § 16.1-354 (Michie 1999); W. Va. Code § 44A-5-7(a) (Supp. 2000).
267 See Neb. Rev. Stat. § 30-2616(b) (Supp. 1998).
268 See Md. Code Ann., Est. & Trusts § 13-903(d)(3) (Supp. 1999); N.Y. Surr. Ct. Proc. Act Law § 1726(3)(d)(iii) (McKinney 1996 & Supp. 2000); Wis. Stat. Ann. § 48.978(2)(n)1 (West Supp. 2000).
269 N.C. Gen. Stat. § 35A-1373(h) (1995 & Supp. 1999). This subsection appears to be triggered only upon the motion of the petitioner or other person entitled to notice of the standby guardianship under the statute.
270 Tex. Prob. Code Ann. § 676(g) (Vernon Supp. 2002).
271 Va. Code Ann. § 16.1-354C (Michie 1999); W. Va. Code § 44A-5-7(c) (Supp. 2000).
271.1 D.C. Code Ann. § 16-4810(d) (Supp. 2002).
272 See Conn. Gen. Stat. Ann. § 45a-624d (West Supp. 2000).
273 See D.C. Code Ann. § 16-4804(b) (Supp. 2002) (also allows a licensed nurse practitioner to make a determination); Mass. Gen. Laws Ann. ch. 201, § 2F (West. Supp. 2000).
274 See Minn. Stat. Ann. § 257B.06(7) (West Supp. 2001); 23 Pa. Cons. Stat. Ann. § 5613(d) (West Supp. 2000).
275 See N.C. Gen. Stat. § 35A-1376 (1995 & Supp. 1999); Wis. Stat. Ann. § 48.978(2)(m) (West Supp. 2000). Although North Carolina does not specify a time frame for filing the determination of recovery or remission, Wisconsin requires that it be filed within 90 days of receipt. Wisconsin has a separate process for recovery or remission during the designation process. See Wis. Stat. Ann. § 48.978(3)(d) (West Supp. 2000). Virginia and West Virginia expressly continue, as opposed to suspend, the standby guardian’s authority upon restoration of the parent’s health unless revoked in writing by the parent. See Va. Code Ann. § 16.1-354(C) (Michie 1999); W. Va. Code § 44A-5-7(c) (Supp. 2000).
276 In New Jersey the original standby guardianship bill was amended in committee to clarify that the legislature did not intend that a standby guardianship be established solely for management of a child’s estate. See N.J. Senate Women’s Issues, Children and Family Services Committee Statement, reprinted as note to N.J. Stat. Ann. § 3B:12-67 (West Supp. 2000).
277 See Va. Code Ann. §§ 16.1-350(B)(6), 16.1-352(C) (Michie 1999); W. Va. Code §§ 44A-5-3(b)(7), 44A-5-5(c) (Supp. 2000).
278 See 755 Ill. Comp. Stat. Ann. 5/11-5.3(d) (West Supp. 2000); Md. Code Ann., Est. & Trusts § 13-908 (Supp. 1999) (referencing § 13-208); Minn. Stat. Ann. § 257B.09 (West Supp. 2001); N.C. Gen. Stat. § 35A-1380 (1995 & Supp. 1999); 23 Pa. Cons. Stat. Ann. § 5616 (West Supp. 2000). Generally the bond may be waived by the petitioner, and even if not waived, most states do not require that it be posted until the commencement of the standby guardian’s authority. Illinois, however, appears to require a bond regardless of whether the standby guardianship is of the estate of person, through again, not until the standby guardian assumes authority. See 755 Ill. Comp. Stat. Ann. 5/11-5.3(d) (West Supp. 2000).
279 See Cal. Prob. Code § 2105(f) (Deering Supp. 2000). The California legislature later expressed its intent as follows: “[F]or a parent with a terminal condition to be able to make arrangements for the joint care, custody and control of his or her minor children so as to minimize the emotional stress of, and disruption for, the minor children whenever the parent is incapacitated or upon the parent’s death, and to avoid the need to provide a temporary guardian or place the minor children in foster care, pending appointment of a guardian, as might otherwise be required.” Id. For more on the joint guardianship regime in California, see Joint Guardianship in California: A Manual for Providers (East Bay Community Law Center ed., 2001); see also Sunny Rosenfeld, Developments in Child Custody for HIV-Positive Parents, 11 Berkeley Women’s L.J. 194 (1996).
280 See Cal. Prob. Code § 2105(f) (Deering Supp. 2000).
281 See id. § 2105(d).
282 See id. § 1510 (Deering 1991 & Supp. 2000).
283 See id. § 2105(f) (Deering Supp. 2000).
284 See id. § 1419.5.
285 See id.
286 Id. § 1514(a) (Deering 1991 & Supp. 2000).
287 See generally In re Guardianship of Pankey, 113 Cal. Rptr. 858 (Ct. App. 1974); In re Estate and Guardianship of Hall, 19 Cal. Rptr. 426 (Ct. App. 1962).
288 Cal. Prob. Code § 2105(f) (Deering Supp. 2000).
289 Id.
290 See id.
291 See 1995 Cal. Stat. 278 (A.B. 1104) § 1; see also Laura J. Rooperian, Family, Guardians and Conservators—Removal of Two-Year Requirement of Pending Death or Terminal Condition, 27 Pac. L.J. 799 (1996).
292 See Cal. Prob. Code § 1500(a) (Deering 1991). Consent of the non-custodial parent is not required, however, if her consent would not be required for an adoption of the child under the Family Code. See id. § 1500(b) (referencing California Family Code §§ 8604-8606 wherein consent of parents, consent of mother, and exceptions to parental consent are set forth).
293 See Cal. Prob. Code § 2105(f) (Deering Supp. 2000); Cal. Fam. Code § 3041 (Deering 1994 & Supp. 2000). If the court finds that the minor is of sufficient age and capacity to form an intelligent opinion, the court will consider the minor’s views. See Cal. Prob. Code § 1514(e)(2) (Deering 1991 & Supp. 2000). Additional factors that the court must weigh in custody determinations are the relationship between the child and the objecting parent, and indications of violence or abuse, alcohol or drug problems, or signs of neglect by the objecting parent. See Cal. Fam. Code §§ 3040-3041 (Deering 1994 & Supp. 2000).
294 See generally Guardianship of Kaylee J., 64 Cal. Rptr. 2d 662 (Ct. App. 1997). In addition, the non-custodial parent may remain legally responsible for the minor’s support, though the guardian and the custodial parent typically assume this responsibility.
295 See Cal. Prob. Code §§ 2350-2359 (Deering 1991 & Supp. 2000).
296 See id. § 2352.
297 See id. § 2353.
298 See id. § 2105(c)(1).
299 See Joint Guardianship in California: A Manual for Providers (East Bay Community Law Center ed., 2001).
300 See Cal. Prob. Code §§ 1601, 2650-51, 2660 (Deering 1991).
301 See id. § 1600 (Deering 1991 & Supp. 2000).
302 See Children’s Bureau, U.S. Department of Health and Human Services, Adoption 2002: The President’s Initiative on Adoption and Foster Care II-15 (1999) (suggesting that the absence of a requirement of post-trigger judicial confirmation makes California’s joint guardianship regime more attractive than standby guardianship).
303 See Conn. Gen. Stat. Ann. § 45a-616(b)-(e) (West Supp. 2000). For a discussion of Connecticut’s co-guardianship regime, see Joyce E. McConnell, Securing the Care of Children in Diverse Families: Building on Trends in Guardianship Reform, 10 Yale J.L. & Feminism 29, 41-43 (1998).
304 See Conn. Gen. Stat. Ann. § 45a-616(b) (West Supp. 2000). As described in § 13.9, Connecticut also permits the non-judicial appointment of a standby guardian.
305 See Conn. Gen. Stat. Ann. §§ 45a-616-617 (West Supp. 2000).
306 Id.
307 See id. Connecticut does not specify the contents of written notice of the triggering event to the court. The court may hold a hearing to verify the occurrence of the event and further requires of each co-guardian a written acceptance of the guardianship and, if necessary for the protection of the minor, a bond.
308 See id. This requirement may result in a period between the two events—the triggering event and written notice to the court documenting its occurrence—during which the minor(s) may be without a legal guardian.
309 See id. § 45a-616(c). If the court requests an investigation, the hearing must be held within 30 days following receipt of the results of the investigation.
310 Id.
311 See id.
312 Id. § 45a-617.
313 See id. § 45a-616(d).
314 See id.
315 See id. § 45a-616(d).
316 See id. § 45a-616(e). This is true unless death is the triggering event commencing the guardianship itself, in which case notice to the court appears to be required. See id. § 45a-616(b).
317 See generally Uniform Durable Power of Attorney Act, 8A U.L.A. 309-330 (1993 & Supp. 2000).
318 See generally Uniform Health-Care Decisions Act, 9 U.L.A. Part IB 143-182 (1999 & Supp. 2000). The most important case regarding the rights of individuals to make and control their own health care decisions, and the impetus behind the 1993 Act, is Cruzan v. Director, Missouri Dep’t of Health, 497 U.S. 261 (1990).
319 See generally Uniform Guardianship and Protective Proceedings Act, Uniform Probate Code § 5-105, 8 U.L.A. Part II 64 (Supp. 2002), described more fully below.
320 See generally Uniform Durable Power of Attorney Act § 1, 8A U.L.A. 317-320 (1993 & Supp. 2000); Uniform Health-Care Decisions Act §§ 2 & 4, 9 U.L.A. Part IB 151-155, 156-167 (1999 & Supp. 2000); see also 3 Am. Jur. 2d Agency §§ 25-27 (1986 & Supp. 2000).
321 See generally Uniform Durable Power of Attorney Act §§ 2-5, 8A U.L.A. 320-328 (1993 & Supp. 2000); Uniform Health-Care Decisions Act § 3, 9 U.L.A. Part IB 155-156 (1999); see also 3 Am. Jur. 2d Agency §§ 43-49, 55 (1986).
322 See generally Uniform Durable Power of Attorney Act § 4, 8A U.L.A. 324-326 (1993 & Supp. 2000); Uniform Health-Care Decisions Act § 3, 9 U.L.A. Part IB 155-156 (1999); see also 3 Am. Jur. 2d Agency §§ 50-54 (1986 & Supp. 2000).
323 See Prefatory Note, Uniform Durable Power of Attorney Act, 8A U.L.A. 310-311 (1993).
324 Id.
325 See Uniform Durable Power of Attorney Act §§ 1-5, 8A U.L.A. 317-328 (1993 & Supp. 2000). The Uniform Durable Power of Attorney Act, §§ 1-5, as adopted by the National Conference of Commissioners on Uniform State Laws in 1979, are identical to §§ 5-501 through 5-505 of the Uniform Probate Code, adopted in the same year. Prefatory Note, Uniform Durable Power of Attorney Act, 8A U.L.A. 310-311 (1993). The Model Health-Care Consent Act of 1982 and its successor acts—the Uniform Rights of the Terminally Ill Act of 1985, and the Uniform Rights of the Terminally Ill Act of 1989—have been superceded by the Uniform Health-Care Decisions Act of 1993. Prefatory Note, Uniform Health-Care Decisions Act, 9 U.L.A. Part IB 144-145 (1999).
326 See Uniform Durable Power of Attorney Act §§ 1 & 4, 8A U.L.A. 317-330, 324-326 (1993 & Supp. 2000).
327 See Uniform Probate Code § 5-105, 8 U.L.A. Part II 64 (Supp. 2002).
328 See Comment, Uniform Probate Code § 5-105, 8 U.L.A. Part II 64 (Supp. 2002).
329 Other jurisdictions have enacted the UGPPA, but omitted the parental delegation provision. See, e.g., D.C. Code Ann. §§ 21-2001–21-2077 (2001); Haw. Rev. Stat. Ann. §§ 560:5-101–560:5-432 (Michie 1999). South Carolina adopted the UGPPA with the parental delegation provision, but later amended it out of the statute. See S.C. Code Ann. § 62-5-104 (Law. Co-op. 1987 & Supp. 1999).
330 See Ariz. Rev. Stat. Ann. § 14-5104 (West 1995 & Supp. 1999); Idaho Code § 15-5-104 (1979 & Supp. 2000); Me. Rev. Stat. Ann. tit. 18-A, § 5-104 (West 1998); Mich. Comp. Laws Ann. § 700.5103 (West Supp. 2000); Minn. Stat. Ann. § 524.5-505 (West Supp. 2000); Mont. Code Ann. § 72-5-103 (1999); Neb. Rev. Stat. § 30-2604 (1995); N.J. Stat. Ann § 3B:12-39 (West 1983); N.M. Stat. Ann. § 45-5-104 (Michie 1978 & Supp. 1995); N.D. Cent. Code § 30.1-26-04 (1996); Or. Rev. Stat. § 109.056 (1999); Utah Code Ann. § 75-5-103 (1993). In Idaho, Maine, Montana, and Oregon, exceptions to the six-month limit are recognized for military personnel under designated circumstances. See Idaho Code § 15-5-104 (1979 & Supp. 2000); Me. Rev. Stat. Ann. tit. 18-A, § 5-104 (West 1998); Mont. Code Ann. § 72-5-103 (1999); Or. Rev. Stat. § 109.056 (1999).
331 See Ala. Code § 26-2A-7 (1992); Alaska Stat. § 13.26.020 (Michie 1998); Colo. Rev. Stat. § 15-14-105 (West Supp. 2001).
332 Ind. Code Ann. § 29-3-9-1 (Michie 2000).
333 In re Maricopa County Juvenile Action No. JD-05401, 845 P.2d 1129, 1134 (Ariz. Ct. App. 1993) (emphasis added) (citing In re Maricopa County Juvenile Action No. A-20917, 534 P.2d 434, 436 (Ariz. Ct. App. 1975)).
334 In re Maricopa County Juvenile Action No. JD-05401, 845 P.2d at 1134. Arizona’s dependency statute can only be invoked if it is adjudicated that the child has no parent or guardian willing to exercise effective care and control of the child. Cf. T.B. v. State, 922 P.2d 271 (Alaska 1996) (holding that the custodial authority transferred under Alaska’s parental delegation statute was sufficient to reverse a superior court judgment of dependency, but relying on Alaska’s dependency statute that—unlike Arizona’s analogous provision—includes “custodian” as an enumerated caregiver).
335 McGuffin v. Overton, 542 N.W.2d 288 (Mich. Ct. App. 1995), appeal denied, 546 N.W.2d 256 (Mich 1996). Not only had the mother executed such planning documents, but the court noted that the children were born out of wedlock, the partner and mother had lived in a monogamous relationship for more than seven years with the children until the mother’s death, and the father was both in arrears almost $20,000 in child support and alleged in the mother’s will not to have established a relationship with the children. Id. at 289.
336 Id. at 292.
337 See Ohio Rev. Code Ann. § 1337.09(D) (Anderson 1993 & Supp. 1998). For more on the 1996 amendments, see Michael Stark, Standby Guardianships—Substitute H.B. 288, 7 Prob. L.J. Ohio 65 (1997). The original bill included a provision—eliminated during the legislative process—that would have permitted judicial appointment of a standby guardian in Ohio. Id.
338 Ohio Rev. Code Ann. § 1337.09(D) (Anderson 1993 & Supp. 1998).
339 In fact, Ohio treats a nomination by will and by power of attorney similarly with regards to the preference given such a nomination. See Ohio Rev. Code Ann. §§ 2111.02(D), 2111.12(B) (Anderson 1998). Ohio also provides for nomination of a guardian by another writing, with execution requirements similar to a will. See id. § 2111.121(A).
340 See Ohio Rev. Code Ann. § 2111.02(A) (Anderson 1998).
341 Beginning in the mid-1990s, a handful of states began permitting parental delegation of authority to another adult solely for the purpose of consenting to the immunization of a minor. See, e.g., Colo. Rev. Stat. Ann. § 25-4-1704 (West Supp. 1999); Kan. Stat. Ann. § 38-136 (Supp. 1998); Md. Code Ann., Health-Gen. I § 18-4A-02 to -03 (1994 & Supp. 1998); Mo. Ann. Stat. § 431.058 (West Supp. 2000); Tex. Fam. Code Ann. § 32.101 (West Supp. 2000). Given the narrow nature of the permitted delegation, these statutes are of limited use as permanency planning tools for parents with HIV.
342 See D.C. Code Ann. § 16-4901 (1997). For more on the history of the District of Columbia’s caregiver’s medical consent statute, see Susan L. Waysdorf, Families in the AIDS Crisis: Access, Equality, Empowerment, and the Role of Kinship Caregivers, 3 Tex. J. Women & L. 145, 210-14 (1994).
343 D.C. Code Ann. § 16-4901(c) (1997). The statute also provides for civil indemnification of health care professionals who act in reasonable reliance on such a document. Id. § 16-4901(e).
344 Id. § 16-4901(d).
345 The “Suggested Form” includes the following language: “2. I am temporarily entrusting to [blank], an adult who resides at [blank], the care of the following child(ren). . . .” Id. § 16-4901.
346 See id. § 16-4901(f)–(g).
347 See N.C. Gen. Stat. §§ 32A-28–34 (1999).
348 See id. § 32A-30.
349 See id. § 32A-31(a)-(c).
350 See id. § 32A-32(a)-(c).
351 See id. § 32A-32(d).
352 See Del. Code Ann. tit. 13, §§ 707-708 (Supp. 2000). The enumerated relatives are set forth at Del. Code Ann. tit. 13, § 707(a)(3) (Supp. 2000); the prescribed medical treatments are set forth at Del. Code Ann. tit. 13, § 707(a)-(b) (Supp. 2000).
353 See Del. Code Ann. tit. 13, § 708(a), (c) (Supp. 2000).
354 See id. § 708(e)-(f). However, the statute provides for a civil penalty of $1,000 per child for any person who knowingly makes a false statement in the relative caregiver affidavit. See id. § 708(g).
355 See Del. Code Ann. tit. 13, § 708(b) (Supp. 2000).
356 See id.
357 See id. § 708(d).
358 La. Rev. Stat. Ann. §§ 9:951-954 (West 2000). The document’s execution requirements are suggested by the prescribed form. See id. § 9:954. For more on permanency planning for people with HIV in Louisiana, see Louisiana AIDSLaw Practice Manual (AIDSLaw of Louisiana, Inc. ed., 1996), and AIDSLaw of Louisiana, Inc., LIVING WITH HIV: A Legal Guide (Nov. 1998), and If You Have Children, at (visited Dec. 12, 2003).
359 La. Rev. Stat. Ann. § 9:953 (West 2000).
360 See id. § 9:952.
361 See id. § 9:954.
362 See id.
363 La. Rev. Stat. Ann. § 9:975 (West Supp. 2002).
364 Id. § 9:975(B)(4).
365 Id. § 9:975(A)(2).
366 Id. § 9:975(A)(1), (B)(3).
367 Id. § 9:975(B)(1).
368 See Cal. Fam. Code § 6550 (Deering Supp. 2000).
369 See id. § 6552 (Deering 1996).
370 See id. § 6550(a) (Deeing Supp. 2000). The statute defines “school-related medical care” as medical care that is required by state or local government authority as a condition for school enrollment, including immunizations, physical examinations, and medical examinations conducted in schools. Id. § 6550(i)(3).
371 See id. A relative under this statute is defined broadly and includes a “spouse, parent, stepparent, brother, sister, stepbrother, stepsister, half-brother, half-sister, uncle, aunt, niece, nephew, first cousin, or any person denoted by the prefix ‘grand’ or ‘great,’ or the spouse of any of the persons specified in this definition, even after the marriage has been terminated by death or dissolution.” Id. § 6550(i)(2).
372 See id. § 6550(a). Mental health treatment is subject to the limitations of § 2356 of the California Probate Code.
373 Other states sometimes permit adults to act in limited circumstances without the consent of the parent. For example, in Louisiana, the state with the highest AIDS incidence among those states without a form of standby or joint guardianship, “Any person temporarily standing in loco parentis, whether formally serving or not, for the minor under his care” is authorized to consent to surgical and medical procedures on behalf of the minor. La. Rev. Stat. Ann. § 40:1299.53(A)(9) (West 2001).
374 See Cal. Fam. Code § 6550(c) (Deering Supp. 2000).
375 See id. § 6550(d).
376 See Joyce E. McConnell, Securing the Care of Children in Diverse Families: Building on Trends in Guardianship Reform, 10 Yale J.L. & Feminism 29 (1998).
377 See id.
378 See 1999 Ill. Legis. Serv. P.A. 91-572 (H.B. 2726) (West) (signed into law by Governor George Ryan on August 14, 1999).
379 750 Ill. Comp. Stat. Ann. 50/1 (West Supp. 2001). The statute defined a terminally ill parent as “a person who has a medical prognosis by a physician licensed to practice medicine in all of its branches that the person has an incurable and irreversible condition which will lead to death.” Id.
380 See 750 Ill. Comp. Stat. Ann. 50/5-18 (West 1999 & Supp. 2001).
381 See Catherine J. Ross & Naomi R. Cahn, Subsidy for Caretaking in Families: Lessons from Foster Care, 8 Am. U. J. Gender Soc. Pol’y & L. 55, 58–60 (2000).
382 See 59 Am. Jur. 2d Parent and Child §§ 11, 28, 34-35 (1987 & Supp. 2000); 47 Am. Jur. 2d Juvenile Courts and Delinquent and Dependent Children § 50 (1995 & Supp. 2000).
383 Termination of parental rights is discussed in § 13.14.
384 Pub. L. No. 96-272, 94 Stat. 500 (1980) (codified at 42 U.S.C. §§ 620-668, 670-679 (1988)); see also 2 Am. Jur. 2d Adoption §§ 34-39 (1994 & Supp. 2000).
385 Pub. L. No. 105-89, 111 Stat. 2115 (1997) (codified as amended in scattered sections of 42 U.S.C.).
386 See generally Miller v. Youakim, 440 U.S. 125 (1979). For a discussion of foster as a means of supporting the care of children within biological families, see Catherine J. Ross & Naomi R. Cahn, Subsidy for Caretaking in Families: Lessons from Foster Care, 8 Am. U. J. Gender Soc. Pol’y & L. 55 (2000).
387 For an analysis of kinship foster care programs, see Jacob Leos-Urbel et al., State Policies for Assessing and Supporting Kinship Foster Parents (The Urban Institute 1999).
388 Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104-193, 1996 U.S.C.C.A.N. (110 Stat.) 2105, 2278.
389 See Susan L. Waysdorf, Families in the AIDS Crisis: Access, Equality, Empowerment, and the Role of Kinship Caregivers, 3 Tex. J. Women & L. 145, 199 n.207 (1994).
390 Title IV-E Foster Care Eligibility Review and Child and Family Services State Plan Reviews, 65 Fed. Reg. 4020 (2000).
391 TANF is funded through block grants to states pursuant to the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104-193, 1996 U.S.C.C.A.N. (110 Stat.) 2105, 2110-85.
392 Jacob Leos-Urbel et al., State Policies for Assessing Supporting Kinship Foster Parents 17 (The Urban Institute 1999).
393 E-mail from Rob Geen, Senior Research Associate, The Urban Institute, to author (Jan. 10, 2001).
394 Jacob Leos-Urbel et al., State Policies for Assessing and Supporting Kinship Foster Parents 50 (The Urban Institute 1999).
395 The seven states are Delaware, Illinois, Maryland, Montana, New Mexico, North Carolina, and Oregon. Id.
396 599 N.Y.S.2d 425 (Broome County Family Ct. 1993); aff’d on other grounds sub nom. In re Michael WW, 611 N.Y.S.2d 47 (App. Div. 1994).
397 N.Y. Pub. Health Law § 2781(1) (McKinney 1993 & Supp. 2000).
398 611 N.Y.S.2d 47 (App. Div. 1994).
399 Id. at 48 (quoting N.Y. Fam. Ct. Act § 1038-a).
400 Id.
401 627 N.Y.S.2d 376 (App. Div. 1995).
402 See N.Y. Pub. Health Law § 2785(2)(a) (McKinney 1993).
403 538 N.W.2d 761 (Neb. Ct. App. 1995).
404 Id. at 770.
405 Id. at 773.
406 Id.
406.1 Doe v. Nebraska, 345 F.3d 593 (8th Cir. 2003).
406.2 See State settles adoption lawsuit of man whose wife died of AIDS, AP, Feb. 13, 2004, LEXIS, Nexis Library, AP File; Nebraska Settles Lawsuit With Man After Refusing To Allow HIV-Positive Woman to Adopt Child, at (Feb. 18, 2004).
407 242 F.3d 437 (3d Cir. 2001). This case is discussed in more detail in supplement § 4.7.
408 80 F. Supp. 2d 437, 444 (M.D. Pa. 2000), rev’d, 242 F.3d 437 (3d Cir. 2001).
409 See 2 Am. Jur. 2d Adoption §§ 74, 136-137 (1994 & Supp. 2000); 59 Am. Jur. 2d Parent and Child §§ 34-35 (1987 & Supp. 2000).
410 Pub. L. No. 105-89, 111 Stat. 2115 (1997) (codified as amended in scattered sections of 42 U.S.C.).
411 42 U.S.C. § 675 (1988). In some states, the time frame is shorter, for example, in Ohio, where a termination of parental rights petition must be filed when a child has been in foster care for 12 of the last 22 months. Ohio Rev. Code Ann. § 2151.413(D)(1) (Anderson Supp. 2000).
412 982 P.2d 1011 (Mont. 1999).
413 Id. at 1012.
414 Id.
415 504 S.E.2d 635 (W. Va. 1998).
416 Id. at 638.
417 Id. at 641.
418 Id. at 641-42. At the time of this decision, West Virginia did not have a standby guardianshiplaw. Standby guardianship was adopted by West Virginia in 1999. W. Va. Code §§ 44A-5-2-9 (Supp. 2000). See §§ 13.8–13.9.
419 504 S.E.2d at 643.
420 679 N.Y.S.2d 129 (App. Div. 1998).
421 762 A.2d 1201 (R.I. 2000).
422 The application of the ADA to public entities is discussed in § 4.8.
423 In re Antony B., 735 A.2d 893, 897-99 (Conn. App. Ct. 1999).
424 In re B.K.F., 704 So. 2d 314, 317-18 (La. Ct. App. 1997).
424.1 Adoption of Gregory, 747 N.E.2d 120 (Mass. 2001).
425 In re Terry, 610 N.W.2d 563 (Mich. Ct. App. 2000).
425.1 In re La’Asia S., 739 N.Y.S.2d 898 (New York County Family Ct. 2002).
426 In re B.S., 693 A.2d 716, 719-22 (Vt. 1997).
427 42 U.S.C. § 12132 (1994).
428 Stone v. Daviess County Div. of Children and Family Servs., 656 N.E.2d 824, 829-31 (Ind. Ct. App. 1995).
429 In re Torrance P., 522 N.W.2d 243 (Wis. Ct. App. 1994).
430 In re Diamond H., 98 Cal. Rptr. 2d 715 (Ct. App. 2000).
430.1 In re T.B., 12 P.3d 1221 (Colo. Ct. App. 2000).
430.2 In re Guardianship of R.G.L., 782 A.2d 458, 473 (N.J. Super. Ct. App. Div. 2001).
430.3 In re Jane Doe, 58 P.3d 78, 88 (Haw. Ct. App. 2002).
431 In re C.M., 996 S.W.2d 269, 269-70 (Tex. Ct. App. 1999).
431.1 In re J.H., 30 P.3d 79 (Alaska 2001).
432 J.T. v. Arkansas Dep’t of Human Servs., 947 S.W.2d 761, 766-68 (Ark. 1997).
433 In re A.J.R., 896 P.2d 1298, 1302 (Wash. Ct. App. 1995).
434 In re Angel B., 659 A.2d 277, 279 (Me. 1995).
435 In re A.P., 728 A.2d 375 (Pa. Super. Ct. 1999).
435.1 148 F. Supp. 2d 462, 491 (D.N.J. 2001).
436 CDC, HIV/AIDS Among U.S Women: Minority and Young Women at Continuing Risk (Mar. 11, 2002) ; CDC, HIV/AIDS Surveillance Report 16, 17 (year-end ed., Dec. 1999) (tables 7 and 8) and .
437 See generally Theodore J. Stein. The Social Welfare of Women and Children with HIV and AIDS 64-66 (1998) (describing data indicating who cares for children in families where the mother and/or child is HIV-infected).
438 Pub. L. No. 96-272, 94 Stat. 500 (1980) (codified at 42 U.S.C. §§ 670-679b (1994 & Supp. III 1997), and amended by the Adoption and Safe Families Act of 1997, Pub. L. No. 105-89, 111 Stat. 2115 (codified as amended in scattered sections of 42 U.S.C.)).
439 42 U.S.C. § 673(a)(1)(B).
440 45 C.F.R. § 1356.40(c).
441 42 U.S.C. § 673(a)(2).
442 Id. § 673(c)(1).
443 Id. § 673(c)(2).
444 Id.
445 Id.
446 .
447 Children’s Bureau, U.S. Dep’t of Health and Human Services, Child Welfare Policy Manual, § 8.2B.11, .
448 42 U.S.C. § 673(a)(3).
449 45 C.F.R. § 1356.40(b)(1).
450 See § 13.20 for a discussion of the right to a fair hearing when adoption assistance has been denied by the agency.
451 45 C.F.R. § 1356.40(b); see also Children’s Bureau, U.S. Dep’t of Health and Human Services, Child Welfare Policy Manual § 8.2A.1, .
452 42 U.S.C. § 673(a)(5).
453 Id. § 673(a)(4).
454 See, e.g., N.C. Gen. Stat. § 108A-50 (1999) (authorizing a benefits program for the purpose of encouraging permanent homes for children who are “physically or mentally handicapped, older, or otherwise hard to place for adoption”).
455 See, e.g., Utah Admin. Code § 512-43-4(3)(b)(2) (state adoption assistance funds may be used for the monthly subsidy if a child is not eligible for Title IV-E assistance).
456 42 U.S.C. § 602(a)(3).
457 Id. § 671(a)(21).
458 Id. § 673(a)(1)(B)(i).
459 45 C.F.R. § 1356.41(i).
460 Id.
461 45 C.F.R. § 1356.41(c)(d).
462 Id. § 1356.41(f)(1).
463 Id. § 1356.41(b); see § 13.20 for a discussion of the right to a fair hearing when adoption assistance has been denied by the agency.
464 42 U.S.C. § 673(b).
465 Id. § 1397.
466 Id. § 675(3).
467 See Children’s Bureau, U.S. Dep’t of Health and Human Services, Information Memorandum ACYF-IM-84-31 (Dec. 27, 1984) .
468 The states that have adopted the Interstate Compact are Alabama, Alaska, Arizona, Arkansas, Colorado, Connecticut, Delaware, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Mississippi, Minnesota, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Mexico, North Carolina, North Dakota, Oklahoma, Oregon, Rhode Island, South Carolina, South Dakota, Texas, Utah, Virginia, Washington, West Virginia, and Wisconsin. See Debra Ratterman Baker, Adoption Assistance: A Legal Primer, ABA Child L. Prac. (vol. 19, no. 7), Sept. 2000, at 97-98, 102-04; id., Adoption Assistance Update, ABA Child L. Prac. (vol. 19, no. 9), Nov. 2000) (unpaginated insert).
469 For an exhaustive discussion of obtaining adoption assistance after the adoption decree has been entered, see Tim O’Hanlon, Accessing Federal Adoption Subsidies after Legalization (Child Welfare League of America, 1995).
470 42 U.S.C. § 671(a)(12).
471 .
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