In re Adoption of Children by G.P.B., Jr.
On certification to the Superior Court, Appellate Division, whose opinion is reported at 311 N.J. Super. 38(1998).
Richard A. Russell argued the cause for appellant, G.P.B., Jr.
David A. Stefankiewicz argued the cause for respondent, M.M.
This appeal concerns the standards for terminating the parental rights of a biological parent in an adoption proceeding. In this appeal, the stepfather of two minor children seeks to terminate the parental rights of the biological father and to adopt the children. The Family Part terminated the biological father's parental rights and approved the adoption. The Appellate Division reversed, finding that the biological father did not pose an imminent danger to the children. 311 N.J. Super. 38 (App. Div. 1998). We granted the stepfather's petition for certification. 156 N.J. 405 (1998). During the pendency of the appeal, the Legislature amended the governing statute, N.J.S.A. 9:3-46, to emphasize that the dominant consideration was the best interest of children rather than the rights of their biological parents. We reverse the judgment of the Appellate Division and remand the matter to the Family Part for reconsideration under the amended statute.
G.P.B. is the stepfather of two boys, R.M., age eleven, and A.M., age nine. The boys are the biological children of G.P.B.'s wife, A.B., and her former husband, M.M. The boys consider G.P.B. to be their father, and want to use his last name as theirs. G.P.B. wishes to adopt the boys. As part of the adoption proceeding, he seeks termination of M.M.'s parental rights. M.M. objects to the adoption.
A.B. and M.M. were married in 1981. After several months, A.B. realized that M.M. was an alcoholic. At A.B.'s insistence, M.M. attended meetings of Alcoholics Anonymous. His condition stabilized, and M.M. and A.B. decided to have a child.
During A.B.'s pregnancy, however, M.M. again began to drink heavily. After the birth of R.M. on November 20, 1987, M.M. was so incapacitated that he could not care for his son. After consulting a drug-and-alcohol counselor, M.M. abstained from alcohol for a year. By 1989, however, M.M. had resumed his alcohol abuse. From the time A.M. was born on November 2, 1989, M.M. has not been involved in caring for his two sons.
In the spring of 1990, when A.M. was six months and R.M. was two and a half years old, A.B. and M.M. separated. M.M. became mentally ill and was involuntarily committed to a psychiatric hospital. He was diagnosed with bipolar disorder aggravated by alcohol and antihistamine abuse. Between 1990 and 1993, M.M. underwent several periods of psychiatric hospitalization.
Nonetheless, between 1990 and 1991, M.M. visited the boys weekly in a supervised setting. He also provided financial support for them. On Thanksgiving of 1991, however, M.M. appeared at A.B.'s home, told her that he was Jesus Christ, and that his place was with her. A.B. terminated his visitations with the children. M.M. has not seen or spoken with his children since that time.
In February 1992, A.B. and M.M. were divorced. As part of the divorce settlement, the Family Part granted A.B. sole custody of the children. In the separation agreement, M.M. surrendered all visitation rights, but agreed to pay $800 per month in child support. According to M.M., however, A.B. agreed orally to allow him supervised visitation.
Between 1992 and 1996, M.M. filed several motions for supervised visitation. A.B. opposed the motions, arguing that M.M. was not stable. M.M. declined to provide his medical records or other proof that his condition had improved. The Family Part denied his motions.
During this period, M.M. failed to make the promised support payments. He limited his monthly payments to $186 from his $810 monthly Social Security disability benefits. More recently, M.M. appears to have paid all child-support arrears.
In addition, M.M. tried several times to communicate with the children. His mother called to ask if the children wished to speak with him. He sent them cards and small gifts. A.B. rebuffed his efforts.
In 1991, A.B. began dating G.P.B. They were married in 1994. During the course of their courtship, G.P.B. and A.B. primarily went with the boys on "family dates," such as picnics or trips to the zoo. Now, G.P.B. is substantially involved in the boys' lives as their father. He does the kinds of things that fathers do. He makes breakfast and prepares them for school, coaches R.M.'s soccer team, attends R.M.'s choir performances and A.M.'s violin recitals, helps the boys with school projects, and meets with their teachers. Functionally, he is their father.
To M.M.'s credit, since 1993 he has been a recovering alcoholic. His condition has stabilized, and he receives regular treatment. M.M. has remarried, and is the primary caretaker of two children from his second marriage. He also cares for his four stepchildren. At the time of trial, M.M. was a full-time college student.
M.M. wants to keep his parental rights, and therefore opposes G.P.B.'s request to adopt the boys. He seeks only supervised visitation, not custody of A.M. and R.M.
At trial, both sides relied on experts. Dr. Dov Hammer, testifying for G.P.B., stated that he believed adoption to be in the boys' best interests. Dr. Hammer testified that the younger boy, A.M., has no recollection of his biological father and is completely bonded to his mother and stepfather. By contrast, R.M. shows symptoms of anxiety about M.M. R.M. was quite young when M.M.'s mental illness was uncontrolled. R.M.'s recollection of M.M.'s irrational behavior has left R.M. with substantial feelings of anxiety. Additionally, R.M. is less secure about the stability of his family. Terminating the biological father's parental rights and granting the stepfather's petition, in Dr. Hammer's opinion, would alleviate R.M.'s anxieties.
M.M.'s expert, Dr. Rao Gogineni, reached the opposite conclusion. Dr. Gogineni stated that terminating M.M.'s parental rights would indicate to the boys "that part of them[, that is, their natural father,] is bad." According to Dr. Gogineni, the children's interests would be served best by reinitiating contact with M.M. He believed that the children could form a relationship in which they identify M.M. as their father.
The Family Part granted the adoption, finding that the evidence met the standards of N.J.S.A. 9:3-46(a). In particular, the court found that for more than six months the children have not perceived M.M. as their father. Consequently, the court entered an order terminating M.M.'s parental rights.
The Appellate Division reversed. It reasoned that although the children had no relationship with M.M., the appropriate test was whether continuation of M.M.'s parental rights would result in imminent danger of serious harm to the children. Finding no such danger, the Appellate Division reversed the judgment of adoption.
The bond between parent and child remains society's most fundamental relationship. See Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972); Wisconsin v. Yoder, 406 U.S. 205, 232, 92 S.Ct. 1526, 1541-42, 32 L.Ed.2d 15 (1972); Pierce v. Society of Sisters, 268 U.S. 510, 535, 45 S.Ct. 571, 573, 69 L.Ed. 1070 (1925). Parents enjoy wide latitude in caring for their children. Respect for parental rights also entails consideration of the rights of children. Parents who forsake their children run the risk that others may take their place. The abdication of parental responsibilities can lead to the loss of parental rights and to the adoption of a child.
Before authorizing the adoption of a child, a court must terminate parental rights of the biological parent. See In re P.S., 315 N.J. Super. 91, 107 (App. Div. 1998). Terminating parental rights implicates fundamental liberty interests that are protected under the United States Constitution. See Santosky, supra, 455 U.S. at 753, 102 S.Ct. at 1394, 71 L.Ed.2d 599; Quilloin v. Walcott, 434 U.S. 246, 255, 98 S.Ct. 549, 554, 54 L.Ed.2d 511 (1978); In re L.A.S., 134 N.J. 127, 132-33 (1993). The termination of parental rights involves consideration of the nature of the right, the permanency of the threatened loss, and an evaluation of parental unfitness. L.A.S., supra, 134 N.J. at 132-33. Merely showing that a child would be better off with an adoptive parent rather than with the biological parent is not enough. See New Jersey Div. of Youth and Family Services v. A.W., 103 N.J. 591, 603 (1986).
Generally, courts do not terminate parental rights when the parent has maintained a relationship with a child. Conversely, when an adoptive parent has provided the child with a permanent home, courts often protect the child from interference by a biological parent with whom the child has no relationship. E.E.B. v. D.A., 89 N.J. 595 (1982); Sorentino v. Family and Children's Society of Elizabeth, 74 N.J. 313 (1977).
In recent years, increasing concern has arisen for the best interests of children whose parents have forsaken their parental duties. The child's right to a permanent home has gained increasing prominence. See, e.g., DeBoer v. DeBoer, 509 U.S. 938, 114 S.Ct. 11, 125 L.Ed.2d 763 (1993) (Blackmun, J., dissenting from denial of certiorari where child sought to have custody contest between biological and adoptive parents determined on basis of her best interests); Elizabeth S. Scott & Robert E. Scott, Parents as Fiduciaries, 81 Va. L. Rev. 2401, 2473 (1995) (noting that public reaction to prominent cases "indicates a powerful disquiet with a legal regime that speaks in the language of parental rights").
The New Jersey Legislature has responded to those concerns by repeatedly amending the relevant statutes. Until 1994, the statute controlling termination of parental rights simply stated that such rights could be not be terminated unless the court found that the parent "failed to perform the regular and expected parental functions of care and support of the child, [including] maintenance of an emotional relationship." N.J.S.A. 9:3-46(a) (amended 1994). Courts interpreted that version of the statute to mean that termination of parental rights depended on a finding that the biological parent had abandoned or neglected the child. See L.A.S., supra, 134 N.J. at 134. To find abandonment or neglect, courts required conduct showing a settled purpose to forsake parental responsibilities. See id. at 135; A.W., supra, 103 N.J. at 616. In the alternative, a court could terminate parental rights if the parent's conduct harmed or posed threat of immediate harm to the child. See L.A.S., supra, 134 N.J. at 135; A.W., supra, 103 N.J. at 616. That approach favored the interests of the biological parent. It set a high bar for termination of rights, and ignored the interest of the child in a permanent relationship. James B. Boskey, Adoption Committee of the Family Law Section of the New Jersey State Bar Association, The Proposed New Adoption Statute § 685, at 2 (unpublished policy paper).
In addition, the Legislature provided that a parent shall be presumed to have failed in those functions if unable or unwilling to perform them for six or more months. Ibid. The statute continued to provide that parental rights could not be terminated unless the court found that the parent failed in those functions.
Since 1994, therefore, the statute has declared that the care and support of a child should include three functions: maintenance of the parental relationship, communication between parent and child, or providing financial support for the child. The use of the word "include" demonstrates that the list is not exhaustive. See In re W.P., supra, 308 N.J.Super. at 384-85; see also Fraser v. Robin Dee Day Corp., 44 N.J. 480, 486 (1986)(explaining that "include" is normally used as a word of enlargement, not of limitation). Furthermore, the disjunctive "or" indicates that parents need not fulfill all three functions to defeat a request to terminate their parental rights. See In re W.P., supra, 308 N.J.Super. at 384; see also State v. Smith, 262 N.J.Super. 487, 506 (App. Div.), certif. denied, 134 N.J. 476 (1993)(noting that the use of the word "or" at the end of a list indicates that the list is disjunctive).
Remaining is the question whether the failure of a single parental function triggers the mandate that the court "shall" terminate parental rights. The statute's use of the plural "functions," suggests that a parent must perform at least two functions. Thus, a parent must fail in at least two of the three listed functions before a court should terminate parental rights. Conversely, fulfillment of only one function will not provide a defense to an action to terminate parental rights. See In re W.P., supra, 308 N.J.Super. at 384-85.
The first of the listed functions, the relationship between parent and child, merits special attention. When the Legislature amended the statute in 1994, it replaced the requirement that the parent maintain an "emotional relationship" with the child with the requirement of "the maintenance of a relationship ... such that the child perceives the person as his parent." That amendment shifts the focus from the parent's obligation to the child's perception of the relationship.
"Perceive," which the statute does not define, ordinarily means "to become conscious of; to recognize and identify." Webster's Third International Dictionary (G. & C. Merriam Co. 1966). Here, M.M. argues that "perception" means only that his sons must be aware that he is their father. Thus, he contends that he satisfies the requirement if his sons realize that he is their biological father.
Such a reading is implausibly narrow. A more realistic reading is that a court should consider whether in the child's eyes the person is not just a procreator, but one who acts like a parent. The touchstone is whether a parent can give the child "nurture and affection." See New Jersey Div. of Youth and Family Services v. A.W., 103 N.J. 591, 606 (1986) (stating test for terminating for parental rights and proceedings initiated by Division of Youth and Family Services under Title 30).
The emphasis is on the existence of an actual parental relationship, not merely the parent's knowledge of the child's development. In In re D.M.H., 135 N.J. 473 (1994), this Court considered a contested adoption in which the biological mother voluntarily gave up her child, but then, a year later, sought to reclaim him. In the intervening year, the biological mother called the adoptive parents monthly for news and photographs of the child. The mother, however, did not indicate that she intended to take back her child. Near the child's first birthday, the biological mother saw him for the first time since birth. The following day she filed a complaint for custody. Id. at 478-79.
At that time, the grounds for termination of parental rights were abandonment or parental unfitness. Despite the biological mother's regular communication with the adoptive parents, the Court found that she had abandoned the child. Id. at 490. Her actions indicated a "willful or purposeful repudiation of parental responsibilities." Id. at 481. The Court rejected the biological mother's request for visitation, concluding that "[n]othing in the record . . . suggests that the child's best interests might require a continuing relationship with his biological mother." Id. at 490. As we concluded, the biological mother was "for all practical purposes a complete stranger" to the child. Ibid.
Although the statute no longer specifies abandonment as a ground for termination, the analysis In re D.M.H. is instructive. Like the birth mother in D.M.H., M.M. is a stranger to his sons. Although M.M. has communicated with A.B., he has no relationship with the boys. They know that he is their biological father, but do not regard him as their actual father. In fairness to M.M., the absence of a stronger relationship is due in part to A.B.'s efforts to shield his sons from him.
In a separate paragraph, the Legislature expressly provided that a judgment of adoption "shall be entered over an objection of [a biological parent] if the court finds, during the six-month period prior to the placement of the child for adoption or within [certain time periods], in the case of a child placed for adoption as a newborn infant," that the parent has substantially failed to perform the regular and expected parental functions of care and support or is unable to perform those functions and that the parent's inability to perform those functions is unlikely to change in the immediate future.See footnote 2 When children are placed for adoption, biological parents who have substantially failed or are unable to perform their parental functions within limited periods of time shall lose their parental rights. In contrast, before the 1998 amendment, N.J.S.A. 9:3-46 stated that the adoption shall "not" be granted over the objection of a biological parent "unless" the court found that the parent has substantially failed to perform the regular and expected functions of child care and support. Thus, the 1998 amendment mandates granting the adoption if the court finds the existence of the prescribed conditions, instead of prohibiting the adoption absent the existence of those conditions. In re P.S., 315 N.J. Super. 91, 115 (App. Div. 1998).
The specified periods of limitation do not apply to all adoptions under Title 9. When a child has been living with one biological parent since birth, that child has not been "placed for adoption." Hence, the periods of limitation do not apply. The adoption proceedings in such a case initially turn not on the determination of the failure or inability of the objecting parent, but on the "best interest of the child."
In several respects, parental duties as they relate to the "best interest of the child" under N.J.S.A. 9:3-46(a) differ from the "regular and expected parental functions" under N.J.S.A. 9:3- 46(a)(1) and (2). First, the specified duties in "the best interest" analysis are not as onerous as those required in the performance of "regular and expected parental functions." A parent seeking to show that he or she has "affirmatively assume[d] the duties of being a parent" need only "demonstrat[e] ... the establishment and maintenance of a place of importance in the child's life." In contrast, a parent seeking to show that he or she has performed "the regular and expected parental functions of care and support" must prove that "the child perceives the person as his parent." Similarly, the "demonstration of a continued interest in the child [and] a genuine effort to maintain communication with the child" under the "best interest" analysis is not as difficult as a demonstration under N.J.S.A. 9:3-46(a)(2)(b) that the person has actually communicated with the child or person having custody, as required in the performance of "regular and expected parental duties."
Although stated differently, the financial obligations of a biological parent are substantially similar under both the best interest standard and the standard for determining whether a parent has performed the regular and expected obligations of parenthood. Under the best interest test, the relevant consideration is "the fulfillment of financial obligations for the birth and care of the child." By comparison, under the standard applicable to assessing the performance of parental functions, the test is whether the parent has provided "financial support for the child." N.J.S.A. 9:3-46a(2)(b).
Second, the two standards differ in the measurement of a parent's performance. The measurement of the "regular and expected parental functions" includes consideration of a parent's ability to perform, but the best interest analysis focuses solely on whether the parent has performed the duties, without regard to the parent's ability to perform.
Finally, and of particular relevance to the instant case, the two provisions of the statute set different time frames. Under N.J.S.A. 9:3-46(a) no time limit applies to the determination of the best interest of the child. In contrast, the time to determine whether an objecting parent has "failed to perform the regular and expected parental functions of care and support" is "the six month period prior to the placement of the child for adoption." N.J.S.A. 9:3-46a(2)(c).
Adoptions, whether under Title 9, the general adoption statute, or Title 30, the statute concerned with adoptions instituted by DYFS, depend primarily on legislative enactments. At one time, we read both statutory schemes as depending on proof of harm to the child. Baby M, supra, 109 N.J. at 426. In recent years, the Legislature has set different standards for Title 9 proceedings.
Under Title 30, the "best interests" test continues to concentrate on whether the parent has harmed or is likely to continue to harm the child. See In re K.H.O., __ N.J. __ (1999) (slip op. at 8-9); In re D.M.H., __ N.J.__ (1999) (slip op. at 10). N.J.S.A. 30:4C-15.1(a), for example, sets forth a four-prong test to determine a child's best interest; three of the four prongs focus on harm to the child. The first prong asks whether the parent has harmed the child, the second whether the parent is unable or unwilling to eliminate the harm, and the fourth whether the termination of parental rights will do more harm than good. Under Title 30, then, harm to the child's safety, health, or development, can lead to the termination of parental rights.
In Title 9 proceedings, the Legislature has redirected the focus from harm to the child to the discharge of parental functions. Although the failure of a parent to discharge parental functions often will harm the child, Title 9 proceedings are less concerned with such harm and more with the parent's willingness and ability to provide effective parenting. To that end, N.J.S.A. 9:3-46 directs courts to consider whether the objecting parent has affirmatively assumed his or her parental duties and has fulfilled the "regular and expected parental functions of care and support."
In sum, when considering a termination of parental rights in an adoption proceeding, the Family Part generally should ask whether the objecting parent has "substantially failed to perform the regular and expected parental functions of care and support of the child" within the relevant time. If the court finds that the objecting parent has failed in performing those functions, it must determine whether the parent was able to fulfill them. When assessing the objecting parent's inability, the court should consider whether the custodial parent has contributed to that inability by blocking the objecting parent's access to the child.
If the court finds that the objecting parent has failed in performing his or her parental functions, it "shall" enter the judgment of adoption over the parent's objection. If, however, the court finds that the objecting parent has not failed in performing his or her parental functions, the court should determine what resolution is in the best interest of the child. Alternatively, if the court finds that the relevant time period does not apply, the court should then turn to the best interest analysis.
When answering these questions, the court should consider whether the objecting parent has affirmatively assumed the duties of a parent as defined in N.J.S.A. 9:3-46(a). The court, however, also may consider other factors in determining the child's best interest. In considering those factors, the court should avoid a comparative analysis of the birth parent with the adoptive parent. As we have noted, the question is not whether the child would be better off with the adoptive parent, but whether the biological parent has failed to fulfill his or her duties.
In its decision below, the Appellate Division focused on "whether continuation of the parental relationship would place the child in imminent danger of serious harm." 311 N.J.Super. 38, 45 (1998) (internal quotations omitted). Finding that M.M. posed no danger to the children, the court reversed the termination of his parental rights. Id. at 48. It also found that the record did not support "the proposition that M.M. has relinquished his parental role." Ibid. We disagree. Even under N.J.S.A. 9:3-46(a) as it existed before the 1998 amendment, the emphasis on the threat of imminent harm to the child was misplaced.
Because A.M. and R.M. were never placed for adoption, the Family Part need not consider on remand whether M.M. failed in performing the "regular and expected functions of care and support" in the six months prior to the "placement of the child[ren] for adoption." Rather, the court should look to the best interest analysis and determine whether, over the course of his sons' lives, M.M. has affirmatively assumed the specified parental duties.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, GARIBALDI and COLEMAN join in JUSTICE POLLOCK's opinion. JUSTICE O'HERN filed a separate concurring opinion, in which JUSTICE STEIN joins.
In a contest between a person who is entitled to notice pursuant to section 9 of P.L. 1977, c. 367 (C.9:3-45) objecting to the adoption and the prospective adoptive parent, the standard shall be the best interest of the child. The best interest of a child requires that a parent affirmatively assume the duties encompassed by the role of being a parent. In determining whether a parent has affirmatively assumed the duties of a parent, the court shall consider, but is not limited to consideration of, the fulfillment of financial obligations for the birth and care of the child, demonstration of continued interest in the child, demonstration of a genuine effort to maintain communication with the child, and demonstration of the establishment and maintenance of a place of importance in the child's life.
Termination of parental rights presents the legal system with an almost insoluble dilemma. On the one hand, we emphasize the inviolability of the family unit, noting that "[t]he rights to conceive and to raise one's children have been deemed 'essential,' * * * 'basic civil rights of man,' * * * and '[r]ights far more precious * * * than property rights' * * *." Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 1212, 31 L. Ed. 2d 551, 558 (1972) (citations omitted). The interests of parents in this relationship have thus been deemed fundamental and are constitutionally protected. On the other hand, it has been recognized "that a state is not without constitutional control over parental discretion in dealing with children when their physical or mental health is jeopardized." Parham v. J.R., 442 U.S. 584, 603, 99 S. Ct. 2493, 2504, 61 L. Ed. 2d 101, 119 (1979) (citing Wisconsin v. Yoder, 406 U.S. 205, 230, 92 S. Ct. 1526, 1540, 32 L. Ed. 2d 15, 33 (1972)).
"Termination of parental rights is essentially, of course, a statutory proceeding; but the statute does not say it all. Overlying constitutional considerations, constantly recurring statutory amendments, and the rapidly evolving nature of present-day social theory and public policy make judicial interpretation an inevitable and indispensable part of critical legal operation." Champagne v. Welfare Div. of Nevada State Dep't of Human Resources, 100 Nev. 640, 663, 691 P.2d 849, 865 (1984). Indeed, were the sole criterion stated to be in terms of the best interests of the child, it would be suspect for vagueness because of the important constitutional interests involved.
N.J.S.A. 9:3-46 elaborates on the best interests standard by cataloguing the circumstances in which the Legislature has determined that a child's health and welfare will be seriously impaired by continuing an existing parental relationship. The judicial inquiry should focus on the conduct specified by the Legislature as evidence of the type of harm that children should be spared. For example, a father who never sees his child or never makes efforts to be a part of a child's life sufficient to cause the child to view the person as a parent, causes harm to the child. Children have a profound interest in permanency and knowing who their parents are. The problem is compounded here because the adopting party is a step-parent who has bonded with the two children. See In re Guardianship of J.C. and J.M.C., 129 N.J. 1, 25-26 (1992) (requiring remand to determine whether children had "bonded with their foster parents and if so whether breaking such bonds would cause the children serious psychological or emotional harm.").
Under N.J.S.A. 9:3-46a, in order to determine best interests, the court considers whether the parent has fulfilled financial obligations toward the child, whether the parent has demonstrated "continued interest in the child," whether the parent has made "a genuine effort to maintain communication with the child," and whether the parent has "a place of importance in the child's life."
The statute then sets forth time periods in a child's life when the standards must be met, such as, for example, within the crucial first months of a child's life. Under N.J.S.A. 9:3- 46a(1) and (2), an adoption may be entered over the objection of a parent if the court finds that during the relevant time periods, either "the parent has substantially failed to perform the regular and expected parental functions of care and support of the child, although able to do so," or the parent is unable to do so. The "regular and expected parental functions of care and support" include "the maintenance of a relationship with the child such that the child perceives the person as his parent . . . communicating with the child . . . unless prevented from so doing," and "providing financial support . . . unless prevented from doing so." N.J.S.A. 9:3-46a(2)(a), (b) and (c).
The elements of these composite tests are intended to indicate whether a parent has failed and thereby harmed a child and whether that harm is likely to continue if the relationship is not ended.
Although the question of best interests of the child is dispositive of the custody issue in a dispute between natural parents, it does not govern the question of termination. It has long been decided that the mere fact that a child would be better off with one set of parents than with another is an insufficient basis for terminating the natural parent's rights. . . . It must be noted, despite some language to the contrary, that the interests of the child are not the only interests involved when termination issues are raised. The parent's rights, both constitutional and statutory, have their own independent vitality.
On remand, the Family Part must make the qualitative determination, using the analytical framework of the statute, of whether the physical or mental health of the children has been and will continue to be jeopardized by their relationship with their father. Parham, supra, 442 U.S. at 603, 94 S. Ct. at 2504, 61 L. Ed. 2d at 119.
Justice Stein joins this opinion.
POLLOCK, J., writing for a majority of the Court.
This appeal concerns the standards for terminating the parental rights of a biological parent in an adoption proceeding. In this case, G.P.B., Jr. ( G.P.B.) seeks to adopt his two stepsons, A.M., age nine, and R.M., age eleven, and to terminate the parental rights of the boys' biological father, M.M., who opposes the adoption.
M.M. and A.B. were married in 1981 and it soon became apparent that M.M. was an alcoholic. M.M. attended meetings of Alcoholics Anonymous at A.B.'s insistence and after his condition stabilized, they decided to have a child. R.M. was born on November 20, 1987, but M.M. had begun to drink heavily during A.B.'s pregnancy and except for a one-year period when he abstained from alcohol after seeking counseling, M.M. was not involved in caring for either child, the second of whom was born in 1989.
M.M. and A.B. separated in the spring of 1990 and M.M. subsequently was diagnosed with bipolar disorder aggravated by alcohol and antihistamine abuse. He was involuntarily committed to a psychiatric hospital and was hospitalized several times between 1990 and 1993. During the beginning of this period, however, M.M. provided for his sons financially and visited the boys weekly in a supervised setting. After M.M. appeared at A.B.'s home on Thanksgiving of 1991 and announced that he was Jesus Christ and that his place was with her, A.B. terminated the visitation and M.M. has neither seen nor spoken with his sons since that time.
Under the terms of the settlement made by M.M. and A.B. when the judgment of divorce was entered in February 1992, A.B. was given sole custody of the children. M.M. surrendered all visitation rights, but agreed to pay $800 per month in child support. Between 1992 and 1996, M.M. received $810 per month in Social Security disability benefits and limited his support payments to $186, but he since has paid his support arrears.
M.M. maintained that A.B. orally agreed to supervised visitation and he made several unsuccessful motions for visitation between 1992 and 1996. A.B. asserted M.M. was unstable and M.M. failed to provide his medical records or any proof that his condition had improved. A.B. rebuffed M.M.'s efforts to communicate with his children during this period.
Since 1993, M.M. has been a recovering alcoholic. His condition has stabilized and he receives regular treatment. He remarried and is the primary caretaker of the two children from his second marriage. He also cares for his four stepchildren. At the time of the trial in this matter, M.M. was a full-time college student. A.B. remarried also, in 1994, after dating G.P.B. since 1991. G.P.B. functions as the boys' father and the boys consider him their father. They want to use his last name as theirs. G.P.B. wants to adopt his stepsons and as part of the adoption proceedings seeks to terminate M.M.'s parental rights. M.M. objects to the adoption and to the termination of his parental rights. He seeks only supervised visitation with his sons, not custody of them.
At the trial of this matter, G.P.B. offered an expert witness who testified that in his opinion adoption was in the boys' best interests. M.M. offered an expert who reached the opposite conclusion. The Family Part granted the adoption and terminated M.M.'s parental rights. The court found that the evidence met the standards of N.J.S.A. 9:3-46 (a), and found specifically that the boys had not perceived M.M. as their father for more than six months.
M.M. appealed to the Appellate Division, which reversed the judgment of adoption. The court acknowledged that the boys had no relationship with M.M., but stated that the Family Part should have considered whether continuing M.M.'s parental rights would result in imminent danger of serious harm to the children. The Appellate Division found no such danger. The Supreme Court granted G.P.B.'s petition for certification.
HELD: Following the 1998 amendment to N.J.S.A. 9:3-46 (a), a court deciding the contested adoption of a child who has lived with one biological parent should use the "best interests of the child" standard and determine whether the biological parent objecting to the adoption has affirmatively taken on the duties of a parent as described in the statute.
JUSTICE O'HERN, concurring, in which JUSTICE STEIN joins, stresses that, using the analytical structure of the statute, the court must make the qualitative determination of whether the physical or mental health of the children has been and will continue to be jeopardized by their relationship with their father.


Robert Mehl (Father) appeals the award of attorney's fees to his former wife, Shari A. Mehl (Mother), in post-dissolution proceedings concerning a petition to relocate. The sole issue presented on appeal is whether the trial court improperly awarded attorney's fees absent a finding of extreme hardship.
Father and Mother were married in 1991 and divorced in 1994. The dissolution court awarded Mother custody of the couple's minor child. On January 9, 1996, Mother filed a petition to relocate to North Carolina and a separate petition for modification of child support. Father responded on January 26, 1996 by filing a petition for modification of custody and a petition for contempt based on Mother's alleged failure to comply with the court's visitation order. The child's paternal grandparents subsequently intervened seeking visitation with the child. Following protracted litigation and several hearings, on June 11, 1997, the court entered its detailed findings of fact, conclusions of law and judgment denying Father's petition for modification of custody; determining Father's and grandparents' visitation schedules; setting Father's child support obligation; ruling Mother was in contempt but had purged herself of the contempt; and (5) awarding Mother $25,200.00 of her $31,500.00 total attorney's fees. The attorney fee award was based upon the trial court's finding a substantial disparity in earnings and earning ability of the parties. Father appeals that award, claiming that under the prevailing statute the court had the authority to award attorney's fees only upon a finding of extreme hardship.
Central to the issue presented is which of two relevant statutes controls the award of attorney's fees in this case. In its conclusions, the trial court specifically cited Ind. Code § 31-1-11.5-16 (1993)See footnote 1 1 which permits a trial court to order a party to pay a reasonable amount for the cost to the other party of maintaining or defending any proceeding in connection with the marriage dissolution. Shively v. Shively, 680 N.E.2d 877, 883 (Ind. Ct. App. 1997). When making such an award, the trial court considers the resources of the parties, their economic condition, their ability to engage in gainful employment and to earn adequate income and other factors that bear on the reasonableness of the award. Hanson v. Spolnik, 685 N.E.2d 71, 80 (Ind. Ct. App. 1997), trans. denied. The court may also look at the responsibility of the parties in incurring the attorney's fees. Id.
(b) Upon request of either party, the court shall set the matter down for a hearing for the purposes of reviewing and modifying if appropriate the custody, visitation, and support orders. The court shall take into account the distance involved in the proposed change of residence and the hardship and expense involved for noncustodial parents to exercise such rights, in determining whether to modify the custody, visitation, and support orders.
(c) Except in cases of extreme hardship, the court shall not award attorney's fees.
IC 31-1-11.5-21.1 (b) and (c) (emphasis added).
Father insists that the trial court was required to apply the extreme hardship standard enunciated in the foregoing statute. To support his position, Father directs us to Beeson v. Christian, 583 N.E.2d 783 (Ind. Ct. App. 1991) in which this court interpreted IC 31-1-11.5-21.1. In Beeson, when the mother temporarily moved her residence to London, England, the trial court permitted the child to remain in her custody despite the father's request to name him the primary custodian. Id. at 786. The following year, the mother petitioned to extend the order alleging her current husband had received an extension of his term in London. The father objected and again requested a change in custody and establishment of visitation privileges. The mother subsequently filed a petition for an increase in child support and a change in visitation. Id. Following a hearing, the trial court granted the mother's petition to extend the relocation order and then awarded the mother attorney's fees despite the lack of evidence concerning extreme hardship. The father appealed, arguing the attorney fee award was unjustified under the applicable statute.
Our court agreed, reasoning that [t]he fact the trial court reviewed the issues of modification of custody and visitation, which ordinarily allow [a] discretionary award of attorney's fees, does not change the gravamen of the action here. Id. at 790. We also observed that the relevant statute expressly recognizes that custody and visitation issues will necessarily arise when a custodial parent petitions to relocate. Id. In reversing the award, our court held that review of custody, visitation, and support under IC § 31-1-11.5-21.1 does not open the door to the discretionary attorney fee provisions of the general dissolution statutes. Id.
Mother attempts to distinguish Beeson from the present case, arguing that the gravamen of this case is not her relocation to North Carolina but Father's unsuccessful attempt, at all costs, to obtain a modification of custody. We recognize that litigation in this case was protracted and costly, encompassing discovery in three states. Nevertheless, in enacting the attorney fee provision of IC 31-1-11.5-21.1(c), the legislature did not make an exception for cases involving zealous advocacy.
Mother also observes that much of the litigation related to her alleged financial and emotional instability rather than to her relocation. When modification of custody is sought because of an intended relocation, the statute requires the court to take into account the distance involved in the proposed change of residence and the hardship and expense involved for the noncustodial parent in exercising visitation rights. However, this statute is construed in conjunction with other statutes requiring a trial court to consider all relevant factors when determining whether modification of custody would be in a child's best interests. See Ind. Code §§ 31-1-11.5-22(d) (Supp. 1994) and 31-1-11.5-21(a) (Supp. 1994);See footnote 3 3 see also, e.g., Beeson, 583 N.E.2d at 788 (psychologist performed custody evaluation administering psychological tests to father and his present wife and to mother and her present husband).
Whether extreme hardship exists is a question of fact to be resolved by the trial court. Here, the trial court awarded fees utilizing an inappropriate test. Although there is evidence of Mother's lack of assets and income available for payment of attorney's fees, we decline to decide the question presented as a matter of law. Thus, we remand this case to the trial court with instructions to determine whether Mother is entitled to attorney's fees under the applicable statute.
Footnote: 1 1 The statute was repealed, amended and recodified at Ind. Code § 31-15-10-1 (Supp. 1997).
Footnote: 2 2 The statute was repealed, amended and recodified at Ind. Code § 31-17-2-23 (Supp. 1997).
Footnote: 3 3 Modification of child custody is now governed by Ind. Code § 31-17-2-21 (Supp. 1997) and Ind. Code § 31-17-2-8 (Supp. 1997).
Footnote: 4 4 The statute has been repealed, amended, and recodified at Ind. Code § 31-16-10-3(a) (Supp. 1997).


This ruling relates to a CRN in an insurance claim by Evergreen Lakes HOA (“Evergreen”) after its property was damaged by Hurricane Wilma in 2005. Evergreen was dissatisfied with Lloyds’ handling of its claim, and drafted the CRN on the statutory form in July of 2006, mailed a copy of the CRN to DFS, and claimed it mailed a copy to Lloyds at that insurer’s address reflected in the DFS database. DFS accepted the CRN on August 15, 2006 and sent notice to Lloyds stating “the sixty (60) day time period as required by Florida Statutes 624.155(3)(a) began to run as of the date of acceptance.” Lloyds responded to the CRN within the sixty (60) day time period, challenging the sufficiency of the CRN. However, it did not contest the service of the CRN on it by DFS, nor challenge the DFS acceptance date of August 15, 2006.
Nearly four years later, Evergreen Lakes brought suit against Lloyds alleging statutory bad faith. The bad faith litigation was abated for several more years pending resolution of the underlying breach of contract action, but eventually resumed in 2013. Discovery in the bad faith action revealed Evergreen may not have sent the CRN to the correct address for Lloyds. However, discovery also revealed that, Lloyds’ counsel received the CRN at least by October 2, 2016. Lloyds moved for summary judgment on the contention that Evergreen could not prove that Lloyds received the CRN on or before the date DFS accepted it, so Evergreen Lake’s bad faith claim was precluded. The trial court agreed and granted Lloyds motion for summary judgment.
The Fourth District Court of Appeals in Evergreen Lakes tracked the origin of Florida’s Civil Remedy statute, F.S. §624.155, and its pre-suit notice requirements, noting that back in 2006, the statute did not include any guidance as to how a CRN must be delivered to an insurer. However, the statute did clarify that the CRN is meant to serve as an opportunity for an insurer to cure the alleged violation, and thereby avoid civil litigation. The Evergreen court noted there no dispute that both DFS and Lloyds received a copy of the CRN on the statutory form at least 60 days before Evergreen filed its bad faith suit; and that Lloyds had almost four years to cure the alleged violation before the bad faith action proceeded. Lloyds argued entitlement to summary judgment as it did not have the benefit of the full 60 day cure period due to the mailing error.
We note that the events in Evergreen Lakes all took place prior to 2009 and enactment of Fla. Admin. Code R. 69J-123.002. Since that rule was enacted, all CRN’s must be electronically submitted to the DFS website. This rule not only clarified the definition of the term “given” in the 2006 version of Florida Statute §624.155, but addressed the issues of the insurer’s response to the CRN and any communication between the parties after the CRN has been filed.
In the recent holding in Ifergane v. Citizens Property Insurance Corp. 2017 Fla.App. LEXIS 14745, (3d DCA Oct. 18, 2017), the Third District Court of Appeal adopted a prior ruling by the Second District Court of Appeal finding that an insurer that denies coverage thereafter has waived its right to request an insured submit to examination under oath. In Ifergane, the insured’s husband filed a claim, which the insurer responded to and initially determined that any loss or damage to the property fell below the policy deductible. The insured assigned her claim to her former husband who requested the claim be reopened and reconsidered, and Citizens eventually determined that certain damage amounts existed over the deductible, and paid those amounts. By separate letter, however, Citizens explained why certain claimed damage or repairs were not covered, asserting that “By stating the above reason or denial, … does not intend to waive any other rights.” The insured’s husband subsequently demanded appraisal, and Citizens requested the insured submit to examination under oath. The insured, Ifergane, never complied, resulting in a summary judgment in favor of Citizens.
The appellate court reversed the trial court summary judgment, holding that there was a reasonable inference that the insurer’s letter constituted a denial letter and should have read “By stating the above reason [f]or denial . . .”. The Ifergane Court reasoned that, if the letter was in fact a coverage denial, then Citizens had waived any right it may have had to enforce the contractual post-loss conditions, including compelling the insured to submit to examination under oath. If the letter was not a denial, but merely a request for further information, then the insurer did not waive its rights and the insured’s failure to comply precluded coverage. The Court accordingly remanded the case to the trial court for further proceedings on that issue.
In pending actions before them, both Honorable Jennifer Bailey and Honorable Antonio Marin of the Miami-Dade Circuit Courts recently granted Summary Judgment in favor of United Property & Casualty Insurance Company in separate actions. Both rulings in favor of the insurer were based on the insured’s failure to participate in mediation or appraisal prior to bringing suit.
The insured filed two lawsuits against United through the Strems Law Firm for two separate claims. In both claims, the insured failed to either invoke the mediation or appraisal provisions of the policy, despite a clear contractual post-loss condition in the insurance policy mandating that “[m]ediation or [a]ppraisal is required as a prerequisite before an Insured can file suit related to Section I of this policy regarding the amount of loss.” At no time prior to the filing of the lawsuit did the insured participate in mediation or appraisal.
Lucas Austin in the Tampa Office of Groelle & Salmon filed the motions for summary judgment in both lawsuits based upon Plaintiff’s total failure to comply with those contractual post-loss duties under the policy before filing or serving the lawsuits on United Property & Casualty. Attorney Bethany Ruiz of Groelle & Salmon’s Miami Office argued the motions at hearing, asserting that participation in mediation or appraisal was a clear and unambiguous post-loss condition precedent to filing suit under the policy. At the separate hearings on those motions, both Judges agreed that mediation or appraisal was a condition precedent to filing suit against the insurer.
In Podolsky v. Federal National Insurance Co. 25 Fla. L. Weekly 530a, the 15th Judicial Circuit Court in Palm Beach County (in the 4th District) granted summary judgment in favor of the defendant insurer on a finding that the plaintiffs’ public adjuster was not a “competent and impartial” appraiser within the meaning of the appraisal provision of the insurance policy.
In Podolsky, the insurer invoked appraisal to resolve the disputed amount of loss, and called specific attention to the appraisal clause requirement in the insurance policy that the parties each appoint a competent and impartial appraiser within 20 days of appraisal being invoked. The terms "competent" and "impartial" were not expressly defined in the policy. The insureds named their public adjuster as their appraiser. The insurer objected, asserting the public adjuster could not act as an ‘impartial’ appraiser given his direct financial interest in the outcome of the appraisal, and requested that they select a different, and impartial, appraiser. When the insureds declined to respond to that request, the insurer denied the claim for noncompliance. [Note that the appraisal clause is in the post loss Conditions of the insurance policy.] A lawsuit was then filed by the insured Plaintiffs.
Prior to Podolsky, both the Third District Court of Appeal and the Fifth District Court of Appeal had previously analyzed similar appraisal clause language ("competent and disinterested"), but had reached different conclusions and holdings. As there was no guidance in the Fourth District of Appeal on that clause, the Podolsky Court relied on secondary sources for its ruling. Thus, looking to Black's Law Dictionary for the meaning of "impartial" under the policy, the Podolsky Court looked at the definitions for both “impartial” and “disinterested” and, applying there normal usage and meaning, held that a public adjuster whose fee is based on the total amount of the loss to be determined in appraisal, has an interest in the amount of the loss, and therefore cannot be considered impartial in the appraisal process.
In Ronald Garcia v. United Property & Casualty Ins. Co, Administrative Judge, Jennifer Bailey, in Miami-Dade, granted United’s Motion for summary judgment, finding that participation in mediation or appraisal was a condition precedent to filing suit under the policy, and Plaintiff’s failure to comply with these provisions constituted a material breach of the policy, rendering Plaintiff’s breach of contract lawsuit invalid as a matter of law.
The insured submitted a claim for alleged water damage that was said to have occurred on December 1, 2015, for which United determined that the covered damage to the property totaled $6,674.94. In April 2016, Plaintiff acknowledged receipt of the payment and demanded additional payment. On June 21, 2016, United advised the Plaintiff in writing that it was demanding mediation pursuant to the policy of insurance, which mandates that “[m]ediation or Appraisal is required as a prerequisite before an Insured can file suit related to Section I of this policy regarding the amount of loss.” At no time prior to the filing (and service) of the instant lawsuit did the Plaintiff participate in mediation or appraisal.
Partner, Lucas Austin, in Groelle & Salmon’s Tampa Office, filed a motion for summary judgment based upon Plaintiff’s total failure to comply with his duties under the Policy by failing to participate in mediation or appraisal prior to filing and serving suit on United. In response to Plaintiff’s Motion for Summary Judgment, Plaintiff’s counsel filed a copy of an Order denying summary judgment for the insurer in the Serrano v. American Traditions in the Highlands County Circuit Court. In the Serrano matter, the Court was not convinced that the language relied on in the Policy made mediation a condition precedent.
Associate, Bethany Ruiz in Groelle & Salmon’s Miami Office, presented the Motion at hearing, and took the position that participation in mediation or appraisal was a condition precedent to filing suit under the policy and the language was clear and specifically states that either mediation or appraisal must take place before suit can be filed. Plaintiff’s counsel attempted to argue that the language in the Policy requiring participation in mediation or appraisal prior to filing suit was ambiguous, but Judge Jennifer Bailey flatly rejected this contention and agreed that the mediation provision was clear and enforceable, as the policy provides, in two separate provisions, that mediation or appraisal is a prerequisite to filing suit. Plaintiff’s counsel also tried to argue that because Plaintiff filed suit on June 6, 2016 (before United sent their correspondence on June 21, 2017), and the Plaintiff should not have to wait for United to act before he can pursue litigation. In response, it was brought to Judge’s attention that this provision was brought to the insured’s attention on more than one occasion – when payment was sent and when United demanded appraisal – and the policy allows for either party to demand mediation. Judge Bailey agreed and maintained the position that mediation or appraisal was to be completed prior to suit being filed, and agreed that despite filing suit before the letter, Plaintiff served United after it received the demand for mediation (which did not further Plaintiff’s position). The Court granted United’s motion for final summary judgment, and Plaintiff filed a Motion for Rehearing., which is currently pending.
Attorney Spotlight - Andrea Zigelsky!
Andrea Zigelsky joined Groelle & Salmon in 2013 as a senior associate attorney and, although she does handle some first party litigation, primarily focuses her practice on defense of personal injury liability claims, and handles matters involving medical malpractice, premises liability, general negligence defense, and liability coverage issues. Andrea earned her Bachelors of Science in Nursing in 1985, Masters in Science of Nursing in1993 and her Juris Doctorate in 2004, with a Health Law concentration. In law school, she competed at several levels of Moot Court competitions, including national competitions.
Andrea has over 20 years actual nursing experience in critical care services, including ICU, administration/management, trauma services, open heart service, post-surgical recovery services, and general medical-surgical services, on which she relies to effectively evaluate claimed injuries and medical malpractice issues in her defense practice. She has served as a guest lecturer for various groups on topics ranging from damages analysis to medical malpractice. Andrea is licensed to practice in all Florida state courts as is admitted in the Middle and Southern District courts of Florida.
Based in Groelle & Salmon’s Vero Beach office, Andrea is originally from New York but has called South Florida home for more than 40 years, almost qualifying her as a native Floridian. She is an avid hiker and Florida sports fan, and enjoys most outdoor activities. She is also active in her community, volunteering with local food banks and outreach programs in Ft. Pierce and Port St. Lucie when she is not spending time with her three grown children or her dog, Mika. Andrea is always anxious to hear from our clients, and invites your general questions in her areas of practice. Please do not hesitate to give her a call with issues she can assist you with, or just to introduce yourself and say ‘hello’!


Birth of a son or daughter of the employee, in order to care for the son or daughter.
Placing the son or daughter with the employee for adoption or foster care.
To care for a spouse, son, daughter, or parent of the employee if the spouse, son, daughter, or parent has a serious health condition. 29 USCS § 2612.
"Son or daughter" means "biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis," the child must be either under 18 years of age or age 18 or older and "incapable of self-care because of a mental or physical disability" at the time that FMLA leave is to commence. 29 CFR 825.122. "Loco Parentis" is defined as an individual who has the "day-to-day responsibilities to care for and financially support a child," it does not require a biological or legal relationship. 29 CFR 825.122(c)(3).
Under CFRA and California law "domestic partners" have "the same rights, protections, and benefits, and shall be subject to the same responsibilities, obligations, and duties under law, whether they derive from statutes, administrative regulations, court rules, government policies, common law, or any other provisions or sources of law, as are granted to and imposed upon spouses." Cal. Fam. Code § 297.5. Therefore spouses and domestic partners have the same rights to leaves of absence to care for domestic partners or spouses who have a serious health condition.
"Parent" means "a biological, adoptive, step or foster father or mother, or any other individual who stood in loco parentis to the employee when the employee was a son or daughter." 29 CFR 825.122.
"To care for" includes physical and psychological care. 29 CFR 825.124(a). Examples include situations where the family member is "unable to care for his or her own basic medical, hygienic, or nutritional needs or safety, or is unable to transport himself or herself to the doctor," "providing psychological comfort and reassurance which would be beneficial to a child, spouse or parent with a serious health condition who is receiving inpatient or home care," and when employee needs to be a "substitute for others who normally care for the family member or covered servicemember, or to make arrangements for changes in care, such as transfer to a nursing home." 29 CFR 825.124.
The employee is unable to perform the functions of their job because of a serious health condition. 29 USCS § 2612(a)(1)(A)-(D).
Chronic conditions and those related to pregnancy qualify for FMLA even if the person with the condition does not receive treatment from a health care provider during the period of absence and the absence does not last more than three consecutive days. "For example, an employee with asthma may be unable to report for work due to the onset of an asthma attack [or]...[a]n employee who is pregnant may be unable to report to work because of severe morning sickness." 29 CFR 825.115. 2 CCR 7297.0(o).
A qualifying emergency has happened because the employee's spouse, son, daughter, or parent is on active duty in the Armed Forces. 29 USCS § 2612(a)(1)(E).
Under FMLA an employee is not required to take their leave of absence all at one time. The employee is allowed to take the leave "intermittently or on a reduced leave schedule. Intermittent leave is leave taken "in separate blocks of time." A reduced leave schedule is "a leave schedule that reduces an employee's usual number of working hours per workweek, or hours per workday. A reduced leave schedule is a change in the employee's schedule for a period of time, normally from full-time to part-time." 29 CFR 825.202(a).
For an employee to receive leave covered under FMLA/CFRA from his or her employer, the employee must give the employer notice, either verbal or written. 29 CFR 825.302. The employee's notice must let the employee know the reason for the leave that is covered by FMLA/CFRA (serious health condition; birth of child or adoption or foster care of child; taking care of spouse, child, or parent with serious health condition.; or emergency because child, spouse, or parent is on active duty with Armed Forces.). 29 CFR 825.302. The notice must also contain the timing and duration the employee anticipates the leave to take up. 29 CFR 825.302.
When an employee comes back from FMLA/CFRA leave, they are entitled to be reinstated by the employer to their same position or an equivalent position. 29 USCS § 2614. The equivalent position is to have "equivalent employment benefits, pay, and other terms and conditions of employment." 29 USCS § 2614. Under FMLA/CFRA the employer must also provide the employee with a written guarantee saying that the employee will be reinstated after his or her leave to the same position or a comparable position. 2 CCR 7297.2.
If you have not been granted an FMLA/CFRA leave, or have experienced negative treatment or termination from having taken a leave from your workplace to take care of a family member, contact the respected family leave lawyers at Kokozian Law Firm, APC. 323-857-5900. Ask about our free initial consultation.


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Civil Procedure AND Star Wars?
Discovery disputes often result in strong judicial rebukes. Then there are the judges who work in a good Star Wars reference in an opinion. This case has both.
This discovery dispute has quickly transformed into a behemoth, replete with competing and disputed descriptions of at the Parties’ efforts to meet and confer. This is not the cooperative discovery contemplated by the Federal Rules of Civil Procedure (the “Rules”) and this Court does not look kindly on the Parties’ behavior, especially when even a quick a review of the record reveals that many of the disputes have since been resolved and would have been resolved even without judicial intervention.
Cedar Grove Composting, Inc. v. Ironshore Specialty Ins. Co. (W.D.Wash. Dec. 23, 2015, No. C14-1443RAJ) 2015 U.S. Dist. LEXIS 171576, at *2-3.
The first issue was a motion for fees by the Plaintiff to recover costs for a motion to compel. The Court denied the motion, holding that the “that Plaintiff did not attempt in good faith to obtain the requested discovery prior to filing its Motion to Compel.” Cedar Grove, at *5. Judge Jones explained that the Plaintiff’s effort to confer with the Defendant over a discovery production could “hardly” be described as done in good faith to resolve issues. Cedar Grove, at *6.
The parties had a telephone meet and confer that had two very different stories, depending on which party was telling the story. The Defendants offered three attorney declarations that recounted the call, which the Plaintiff’s attorney did not dispute. The Court found that “unacceptable.” Cedar Grove, at *7.
In summarizing the dueling meet and confers, the stated the “Plaintiff has given the meet and confer requirement short shift.” Cedar Grove, at *8. Moreover, the Plaintiff never discussed the only remaining discovery dispute between the parties regarding an attorney retained to assess insurance coverage. Id. Furthermore, the motion to compel pertained to amending the Defendant’s privilege log, which was produced before the briefing on the motions had even been finished. Cedar Grove, at *9.
Cedar Grove, at *10-11, citations omitted.
The next issue addressed whether the attorney-client privilege or work product doctrine applied to communications from an attorney retained to analysis possible liability and its renewal policy. Cedar Grove, at *13. What followed was beautiful analysis of what was protected by the attorney-client privilege and what was protected by the work product doctrine. Effectively summarizing the work product doctrine, for a document to be protected, it must: “1) be ‘prepared in anticipation of litigation or for trial’ and (2) be prepared “by or for another party or by or for that other party’s representative.” Cedar Grove, at *18.
The review of the subject communications sought for production revealed they were covered by the work product doctrine. Cedar Grove, at *18-19.
The Plaintiff argued that the Defendant was not producing written claims files improperly withheld behind the work product doctrine, taking the position that the files “simply must exist.” Cedar Grove, at *19.
In addressing this argument, the Court is tempted to simply invoke Occam’s razor — “that in explaining anything, no more assumptions should be made than necessary.” See ACLU v. Clapper, 804 F.3d 617, 624 n.2 (2d Cir. 2015) (quoting Oxford English Dictionary (3d ed. 2004)). Perhaps it is too much of an assumption to think that Defendant seriously trying to mislead both Plaintiff and the Court by simply waving its hand and stating that “these aren’t the droids you’re looking for.” Star Wars: Episode IV — A New Hope (Lucasfilm 1977). A simpler explanation is that many of those documents do exist — and Plaintiff has received them (and would have received them) without this Court’s intervention.
Cedar Grove, at *20, footnote 4, emphasis added.
The Court ultimately held that the subject documents were protected by the work product doctrine and likely covered by attorney-client privilege under state law. Cedar Grove, at *21-22.
There are many Federal Judges who masterfully explain Civil Procedure and enjoy Star Wars. It is good to know Judge Richard Jones can discuss the work product doctrine and make an Obe-Wan Kenobi reference.
Conducting privilege review often is reduced to attorneys simply checking a box that an email, document, or Excel file is “privileged.” The term “privilege” cannot be an all-encompassing term to be used in a privilege log. What is the actual privilege being asserted? If it is an attorney-client communication, it has to be a communication from the client to a lawyer seeking legal advice, or a communication from the lawyer to the client giving legal advice.
Lawyers should define the privileges in their case and set-up document review to reflect those privileges. If privilege issue tagging is done, coupled with notes stating the claimed privilege, the reviewing attorneys are building their privilege logs as they conduct document review. This is far easier then trying to later use the Force to construct an effective privilege log as a later step.
This methodology involved selecting subsets of employees likely to have relevant information, those who sent or received information, those who could have been involved in the case and those “most likely” to have relevant information. Banas at *4.
The Court stated this approach could have been reasonable, but two problems emerged: 1) The methodology was never discussed or agreed to with the Plaintiff; and 2) Multiple deponents did not have their email searched prior to their depositions. Banas at *4-5.
The Plaintiff also had a hard drive that contained ESI that was not produced by the Defendant. Id.
The Court ordered the supplement search and production of ESI from the deponents whose ESI had not been searched. Banas at *6.
The Court stated that the Defendant’s search methodology was not unreasonable or designed to conceal information. Banas at *7. However, as the production was conducted on a rolling basis, the Plaintiff could not have been immediately aware of any production gaps. Banas at *6.
As such, supplemental discovery was reasonable.
The Court also highlighted the Northern District of California’s model order requiring parties to meet and confer over the search of ESI prior to responding to a discovery request. This is one of the first opinions to reference the model order. Following the model order is highly advisable for anyone in the Northern District of California. It also has very good best practices for any attorney to consider in a case with electronically stored information.
Identifying relevant custodians and their electronically stored information requires using technology and strategy. Many can feel like it is trying to find a teardrop in the ocean.
Analyzing communication patterns, clustering email based on domain names or conducting searches based on date ranges and subject matter are just a handful of ways to identifying ESI that could support a parties claims or defenses. Running searches based on discovery requests is another.
I recently had a product demonstration of Kroll Ontrack’s eDiscovery.com Review. Below you can see the features of this product can help search for responsive ESI.
Banas v. Volcano Corp., also has a very important message about the meet and confer process. Parties really should discuss what information is subject to the lawsuit, relevant custodians and search methodologies. While I do not agree with the idea of discussing what tools parties should use, because it can cause unnecessary fighting, agreeing on how ESI will be identified certainly does not hurt between educated attorneys.
There are attorneys who believe the most effective Rule 26(f) meet and confer is simply meeting at dawn with dueling pistols.
The parties in Procongps, Inc. v. Skypatrol, LLC, fought over proclaimed inadequate productions, failures to adequately meet and confer and the defensibility of their productions. Procongps, Inc. v. Skypatrol, LLC, 2013 U.S. Dist. LEXIS 47133, 9-12 (N.D. Cal. Apr. 1, 2013).
The parties Spireon and Skypatrol had many dueling “they did/they did that first” claims before the Court.
Spireon took issue with a discovery production of “410,000 pages of documents” that contained duplicated information. Procongps, Inc., at *8.
According to Spireon, Skypatrol proposed discussing limiting the scope of ESI in the case. According to Spireon, they were willing to “discuss a search of a limited number of custodians using identified terms only after Skypatrol produced documents that could be identified through traditional methods of conferring with Skypatrol’s employees and agents to identify and produce responsive documents.” Procongps, Inc., at *7.
The parties exchanged discussions about discussing search terms, provided that Skypatrol first met is obligation to produce responsive discovery. Procongps, Inc., at *7-8. Skypatrol’s production followed after these exchanges. Spireon then sought an order from the Court for Skypatrol to identify its production by category pursuant to Federal Rule of Civil Procedure 34(b)(2)(E)(i). Procongps, Inc., at *8.
Skypatrol claimed that they had requested to meet and confer over search terms for months. According to Skypatrol, Spireon refused to meet to discuss discovery productions and exchange search terms. Procongps, Inc., at *8.
Skypatrol argued, “Spireon insisted that Skypatrol conduct its own searches and produce documents from over 200 GB of data.” Procongps, Inc., at *8.
Skypatrol claimed that Spireon could not both refuse to cooperate over limiting the scope of discovery through cooperation, then claim Skypatrol produced “too many” documents. Procongps, Inc., at *8-9.
Furthermore, Skypatrol explained that they did run a de-duplication process over its production; the “duplicative” files were email attachments to messages they included for a complete production. Procongps, Inc., at *9-10.
Skypatrol also argued that Spireon’s production was not forensically sound (defensible), because 1) Spireon could not identify any custodians from whom ESI has been collected; 2) Any search terms used to identify responsive ESI other than “Skypatrol;” and 3) The volume of ESI that had been collected or produced by another in the litigation. Procongps, Inc., at *10-11.
Based upon the record before the Court, it appears that the parties have not engaged in a meaningful meet and confer process with regard to ESI production. It is the Court’s view that the current document issues could have been avoided if the parties had cooperated with each other. The relief that the parties seek is essentially an order directing the other side to comply with their discovery obligations, and the Court believes such an order would not actually remedy any problems because both parties assert that they have and are fully complying with their discovery obligations. The Court finds that the most efficient solution is for counsel who are responsible for ESI production to engage in an in-person meet and confer regarding all outstanding ESI production issues in an effort to resolve those matters. If the meet and confer is unsuccessful, the Court will refer any disputes regarding ESI production to a Magistrate Judge for resolution.
The Dreyfus Protocol should never be included in a meet and confer.
eDiscovery requires attorneys to not simply talk about cooperating, but to actually cooperate. Determining search methodologies, the scope of discovery and production formats do not require the same zeal as cross-examining an adverse witness. It is not supposed to be a game of “gotcha,” but determining the technical framework to get to the merits of the case. This requires attorneys to be tactical and have a strategic vision for how they will handle ESI in their cases. Moreover, parties must engage in more than pillow talk to actually reach agreement on eDiscovery protocols.
The adult supervision in eDiscovery often comes from eDiscovery attorneys in law firms and litigation support professionals. How data is collected, the scope of ESI in the lawsuit, data reduction strategies and review methodologies are vital to litigating a case pursuant to Federal Rule of Civil Procedure Rule 1. Fundamentally, these are the professionals who advise attorneys to not request “any and all” ESI, but “all unique ESI” to limit duplicate data in ESI productions. The value of these professionals cannot be overstated in helping litigators be cost efficient and effective.
Attorneys who want to learn effective eDiscovery strategy should read Michael Arkfeld’s Best Practices Guide for ESI Pretrial Discovery: Strategy & Tactics. It is one of the best books on the subject. In full disclosure, Michael is a good friend and I have helped on many webinars. The book offers a great overview of issues, checklists and discovery strategies every litigator should before a meet & confer.
As a general rule, such costs are taxable if the parties have agreed to produce discovery electronically. Specht, at *9, citing Fast Memory Erase, LLC v. Spansion, Inc., No. 10-C-0481, 2010 U.S. Dist. LEXIS 132025, 2010 WL 5093945, at *5 (N.D. Tex. Nov. 10, 2010).
The Defendants had a significant problem in seeking their costs: There was no evidence the parties agreed to produce discovery electronically. Specht, at *10.
The best the Defendants could produce was an email that an associate wrote for a partner to review and comment on. Specht, at *9.
There was no evidence that the draft email had been sent to the Plaintiffs. Specht, at *9. Moreover, the draft email did not reference an actual agreement to produce hard copy discovery in electronic format. Specht, at *9.
The email did reference producing metadata for specific ESI, however, the Court stated that the “Defendant has not adequately documented that an agreement existed between the parties to produce documents electronically.” Specht, at *9-10.
The Court found the $17,778.64 was not recoverable, because the Defendants did not show there was an agreement to produce documents electronically. Specht, at *10.
This case illustrates the realities of modern litigation. The failure to document an agreement for producing ESI or hard copy documents in electronic format can result in costs for producing discovery denied. It is a prudent topic to add to a meet and confer “to do” list.
Attorneys should discuss the form of production during the meet and confer process and codify their agreement in a discovery order. Parties should discuss how databases should be produced, whether hard copy documents are to be scanned and OCR-ed, types of metadata to be produced and how costs should be apportioned. These are just a few examples of topics for a meet and confer.
Establishing expectations on the above topics can help control litigation costs and put a party in a position of strength if there is a later dispute.

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