Saturday, September 5, 2009

An Encouraging Legal Update!

We are in a slow moving legal process that does not ever seem to gather much momentum for anything other than more waiting!

However, we did receive some word this week from our lawyer, and for once, it was something to be excited about! We received the brief that a kind lawyer from the The American Academy of Adoption Attorneys wrote supporting Waverley's case. This generous group wrote this brief on our behalf as an outside party that has an unbiased opinion on the original verdict. They did this work pro bono!

The brief's position is that the lower court's ruling was constitutional and upholds the law, but it also promotes being able to use "best interest of the child" as more of a deciding factor than is currently the case (as dictated by Kansas law).

The brief states, "AAAA takes the position that children should be recognized as individuals possessed of their own interests and rights including the right to be part of a stable and permanent family or custody arrangement and the expectation and sense of security of remaining part of that family unit once it is established."

The appellate court can consider this brief, and it could be used to change Kansas adoption law to incorporate more "best interest and rights of the child" into the courts' rulings.

We are endlessly grateful that this Association thought we were a case worth fighting for. They take on only a limited amount of cases each year.

Matt and I will forever remember Martin Bauer, the author of this brief, as a champion for our daughter. He is really the first person who has been able to actually advocate for Waverley, and not just argue for or against the birthfather parenting.

It was such a relief to read his words as he argued our daughter's case. I felt exhilarated that finally, Waverley had a voice in this matter!

We praise God for Martin Bauer! His words felt like a balm on all of the pain that this case has caused our family. I would describe the trial as out and out nasty, and the birthfather's lawyer was very hateful towards Matt and I in court and in correspondence with our lawyer since the trial ended. Since that is not at all relevant to the case, we had to let that go. Reading this brief felt like a reward for trying to take the higher road.

We have tried to accomodate the birthfather as much as possible during the case and do the right thing. When things were difficult and ugly, one of the verses we looked to was verse Exodus 14:14 which says, "The Lord will fight for you; you need only to be still."

I know that the Lord was fighting for us when Martin Bauer submitted his brief!

Some of the following are excerpts from other rulings or briefs he has quoted; some of the words are his own, but here is a brief synopsis of his 22 page brief:

[A}as a matter of simple common sense, the rights of children in their family relationships are at least as fundamental and compelling as those of their parents. If anything, children's familial rights are more compelling than adults', because children's interests in family relationships comprise more than the emotional and social interests which adults have in family life; children's interests also include the elementary and wholly practical needs of the small and helpless to be protected from harm and to have stable and permanent homes in which each child's mind and character can grow, unhampered by uncertainty and fear of what the next day or week or court appearance may bring.

AAAA asks this Court to recognize that this child has a constitutionally based liberty interest in the protection of his established family, a right which is at least equal to, and AAAA believes outweighs, the rights of others who would claim a "possessory" interest in this child.
The time period for assessing the birth father's alleged contacts with the child must be adjusted to a narrow perspective due to the child’s age. As noted by the Kansas Court of Appeals, an infant's needs and a child's prospective are very immediate... A child cannot wait to grow up to test if the father will or will not make promised or desired changes. The father's past and present condition must be the basis of the court's decision, not promises of future changes.

The self-evident foundation of these two statutory standards for termination of parental rights is that if the birth parent does not have custody, the child is bonding with the persons who have custody and every day that passes, the bond increases. The non-custodial parent cannot just sit back and see what happens until some unknown point in time in the future and do nothing until someone else forces the issue... Here DM (the birthfather) abrogated his role of father despite his financial resources.

A child cannot wait for some future date when the birth father might be prepared to parent the child... filing an objection to the adoption and awaiting the outcome of the case does not satisfy a birth father's post delivery obligations. Neither provides any form of support, yet the need for support continues.

Finally! Someone was fired up for Wavy!

Thank you, thank you, thank you!

At this time, we do not expect to hear from the court for some time. The next word we have from them will be a scheduled date to have our lawyer and the birthfather's lawyer argue their sides before the Appellate Court. We will most likely not have updates on Waverley's case for awhile.

As for Waverley, she has decided at 14 months that she is ready to walk! She is mostly trying to walk on her tip-toes. Her wipe outs are catastrophic! She is covered in bruises. However, she is always game for another go. We are proud of her!

She has also mastered blowing kisses. She puts her hand to her mouth and makes a loud smacking sound.

Waverley is absolutely precious to us. Every day I am grateful for the combination of her sweet and tender spirit with her love for being thrown around and chased. She has the warmest heart and a love for rowdiness. We could not delight in her more.

Thank you for letting us share these things with you. It is amazing to have a forum to tell people how beautiful your children are!

The Nagels -- Waverley's Family


Chris and Diane said...

oh wow guys! my heart is so filled with joy at this! praise Dad for this man and his passions and his turning them toward you and your sweet girl. manna from heaven.

THANK YOU for doing this blog....i am often in pr for you and am so appreciative of having a peek into what is going on (as i know it is burdensome to send email after email to people - i'm glad for this break for you to spread the word).

much love, diane

Kelli said...

God' hand print is all over this ordeal! He is mighty to save!! I am in fervent prayer that this battle will be won!!