In another recent opinion issued by the Court of Appeals, the Court applied the same legal principles emphasized and enumerated in IN RE TA. L. (No. 11-FS-01217, 2013 WL 4779715), also recently issued on August 22, 2013 – but with entirely different outcome.

The Court in In RE TA. L., clearly re-established that when the biological parents have designated a preferred custodian, the trial court can only overcome their choice by finding with clear and convincing evidence that their choice is contrary to the best interests of the child.  There the Court ruled that the parents’ choice of custodian was not given sufficient consideration at trial and thus case remanded.

In the recent case though different set of facts were considered.  Here there were also competing petitions.  An adoption petition by the foster parents and a guardianship motion by the grandparents.  However, the determining factual difference in the most recent case was that the child was medically fragile.  The child was born with significant medical issues.  She required early on monitoring and treatment by specialists in pulmonology, ophthalmology, gastroenterology, and endocrinology.  The evidence established that the foster parents met or exceeded the child’s medical needs diligently keep track of all her medical appointments and progress.  Whereas the grandparents had not attended a single medical appointment with the child nor had fully demonstrated an understanding of the child’s medical needs.

Secondly, the child was placed with the foster parents almost her entire life – some four years.  The experts opined that the child had a parent-child relationship with the foster parents and grandparent-grandchild relationship with the grandparents.  That the child had a primary secured attachment to the foster parents, and it would be severely detrimental to remove the child.

There was also clear evidence that the foster parents had met the child’s educational needs whereas the grandparents lacked basic information regarding the child’s educational needs.

This case and the Court of Appeals ruling here suggests that even if the parent’s choice of custodian is found to be fit and able and willing to care for the child – underlying compelling facts such as ones enumerated here – may still tilt the balance in favor of the foster parents as the termination of parental rights elements established by clear and convincing evidence that it would be contrary to the best interests of the child to be removed from the foster parents.

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