<![CDATA[Ames Smith, Attorney at Law - Posts]]>Tue, 24 Dec 2024 11:09:02 -0800Weebly<![CDATA[Hawai`i Investigates Cause of Maui Wildfires]]>Mon, 21 Aug 2023 20:11:59 GMThttp://ames-law.com/posts/hawaii-investigates-cause-of-maui-wildfiresThe State of Hawai`i is investigating the cause of the Maui wildfires, which began on August 8, 2023 and have killed at least 114 people and destroyed much of Lahaina.

Several news outlets are reporting claims by Maui residents that Hawaiian Electric Industries equipment is responsible for igniting the fires. Several lawsuits have already been filed.

If you or a loved one have been affected by the Maui or the Big Island wildfires, please contact us at inquiries@ames-law.com to learn more about your legal options.

The Hawai`i State Bar Association is also hosting a free legal hotline to provide legal assistance to the residents of Maui and the Big Island and any others adversely affected. Click here for more information.

For updates on the Maui wildfires:
www.mauicounty.gov/
www.mauinuistrong.info/
​dod.hawaii.gov/hiema/august-2023-wildfires/
​www.reuters.com/world/us/how-did-hawaii-wildfires-start-what-know-about-maui-big-island-blazes-2023-08-11/
www.cbsnews.com/news/how-did-maui-fire-start-cause-lahaina-hawaii-wildfire/
www.nytimes.com/article/maui-wildfires-hawaii.html]]><![CDATA[Jury Deadlocks On Ex-NBC Reporter's $5.5M Age Bias Claim]]>Fri, 25 Dec 2015 00:34:41 GMThttp://ames-law.com/posts/jury-deadlocks-on-ex-nbc-reporters-55m-age-bias-claimBy Daniel Siegal

Law360, Los Angeles (December 24, 2015, 4:45 PM ET) -- A California judge declared a mistrial Thursday after a jury deadlocked on a former NBC journalist's claim that the network's Los Angeles station fired him because he was too old, causing him $5.5 million in damages.

After nearly four days of deliberation following Friday's closing arguments, the jury found it could not come to a verdict on the main question facing it: whether age was a substantial motivating factor in NBCUniversal Media LLC's firing of then-69-year-old Frank Snepp's firing, according to Snepp's legal team.

The jury first indicated it was stuck on the question of age discrimination in Snepp's firing on Tuesday, sending repeated notes to Los Angeles Superior Court Stephen Moloney, and then answering in the negative when the judge asked whether further argument from the parties might help them reach a verdict. On Thursday morning, with the jury still claiming it was stuck, Judge Moloney declared a mistrial.

Snepp's attorney Suzelle Smith of Howarth & Smith said in a statement on Thursday that her team had learned from the trial, and were committed to seeing "justice done no matter how long it takes."

“While we believe the majority voted for Frank Snepp, we didn’t quite get to the magic number of 9 out of 12 jurors needed to reach a verdict,” she said. "We look forward to trying the case again as soon as possible."

Snepp filed the suit in October 2013, claiming he was a victim of the station's efforts to appeal to a younger demographic when he was fired in October 2012 at age 69, and that the station's managers had trumped up a false record of insubordination as cover to fire Snepp for his age.

Snepp, who was a chief intelligence analyst for the U.S. Central Intelligence Agency in North Vietnam during the Vietnam War, has decades of television news experience under his belt. He was hired by NBC in 2005 at age 61 and one year later earned the Peabody Award for a four-part series that investigated environmental and safety hazards at a commercial and residential development in southwest Los Angeles.

The trial focused on NBC's move in 2009 to a new business model focused on its online content, which Snepp's attorneys argued led to the station to begin marginalizing him and other older employees. After longtime news director Bob Long retired in August 2010, his replacement, Vickie Burns, and other managers immediately moved to get rid of older employees or physically separate them in the newsroom, according to Snepp.

During Friday's closing arguments, Ames Smith of Howarth & Smith, representing Snepp, argued that NBC had refused to straightforwardly rebut Snepp's claims of age discrimination and wrongful termination, instead putting on a case composed of “days and days and days of misdirection and red herrings,” including details about Snepp's dating life.

NBC was duplicitous both in arguing the case and in firing Snepp, Smith argued, saying that the evidence had shown the company had backdated a negative performance review in order to falsely support its trumped-up claims that Snepp was fired for failing to perform his job duties, calling the action “dishonest, fraud, despicable.”

That despicable behavior left Snepp out of work and traumatized him about the loss of his “life's purpose,” Smith said in urging the jury to award $5,558,400 in economic and non-economic damages. Smith also asked the jury to find that Snepp's bosses acted with malice — which would warrant punitive damages.

The network's attorney Bart Williams of Munger Tolles & Olson LLP told the jury during his closing argument that the actual evidence showed that Snepp was treated fairly, and was fired because he refused to embrace the new position — Content Producer — he was hired to do after the 2009 newsroom reorganization.

Williams pointed out that Snepp was first hired by the station as a freelancer at age 61, was made a staffer at age 62, and was re-hired during the reorganization at age 66 — at a time when the station was hit with mass layoffs, and every laid off employee was younger than Snepp.

On Thursday, the jury found it could not marshal a sufficient number of votes for either side, and Judge Moloney declared a mistrial, sent the jury home, and said a new trial date would be set, likely for sometime in spring 2016, according to Snepp's team.

Snepp is represented by Suzelle Smith, Don Howarth, Jessica C. Walsh and Ames Smith of Howarth & Smith.

NBC is represented by Bart H. Williams, Manuel F. Cachan, Margaret G. Maraschino and Erin J. Cox of Munger Tolles & Olson LLP.

The case is Frank W. Snepp v. NBCUniversal Media LLC et al., case number BC523279, in the Superior Court of the State of California, County of Los Angeles.]]><![CDATA[Ex-NBC Reporter Asks For $5M At Age Bias Trial's Close]]>Sat, 19 Dec 2015 17:57:28 GMThttp://ames-law.com/posts/ex-nbc-reporter-asks-for-5m-at-age-bias-trials-closeBy Daniel Siegal


Law360, Los Angeles (December 18, 2015, 6:58 PM ET) -- Counsel for a former NBC investigative journalist urged a California jury Friday to award him $5.5 million for his alleged age-based firing from NBC's Los Angeles station, saying NBC was “despicable” in trumping up a false record of insubordination to justify the firing.

As the third week in the Los Angeles jury trial came to a close, 72-year-old Frank Snepp's attorney Ames Smith of Howarth & Smith told the jury that the case is “much bigger than Frank Snepp,” saying that NBCUniversal Media LLC and its Los Angeles station KNBC-TV had engaged in intentional, systemic age discrimination, and played “hide the ball” with the evidence to try and duck responsibility.

Smith argued that NBC had refused to straightforwardly rebut Snepp's claims of age discrimination and wrongful termination, instead putting on a case composed of “days and days and days of misdirection and red herrings,” including Snepp's dating life.

NBC was duplicitous both in arguing the case and in firing Snepp, Smith argued, saying that the evidence had shown the company had backdated a negative performance review in order to falsely support its trumped-up claims that Snepp was fired for failing to perform his job duties, calling the action “dishonest, fraud, despicable.”

That despicable behavior left Snepp out of work and traumatized him about the loss of his “life's purpose,” Smith said in urging the jury to award $5,558,400 in economic and noneconomic damages. Smith also asked the jury to find that Snepp's bosses acted with malice — which would warrant punitive damages.

Snepp filed the suit in October 2013, claiming he was a victim of the station's efforts to appeal to a younger demographic when he was fired in October 2012 at age 69.

Snepp, who was a chief intelligence analyst for the U.S. Central Intelligence Agency in North Vietnam during the Vietnam War, has decades of television news experience under his belt. He was hired by NBC in 2005 at age 61 and one year later earned the Peabody Award for a four-part series that investigated environmental and safety hazards at a commercial and residential development in southwest Los Angeles.

The trial has focused on NBC's move in 2009 to a new business model focused on its online content — which Snepp's attorneys have argued led to the station to begin marginalizing him and other older employees. After longtime news director Bob Long retired in August 2010, his replacement, Vickie Burns, and other managers immediately moved to get rid of older employees or physically separate them in the newsroom, Snepp has said.

“It was open season on older employees once Mr. Long left,” Smith said. “It's systemic, it's pervasive and it's hostile to these older employees.”

During NBC's closing arguments, however, the network's attorney Bart Williams of Munger Tolles & Olson LLP told the jury that the actual evidence showed that Snepp was treated fairly, and was fired because he refused to embrace the new position — content producer — he was hired to do after the 2009 newsroom reorganization.

Williams pointed out that Snepp was first hired by the station as a freelancer at age 61, was made a staffer at age 62 and was rehired during the reorganization at age 66 — at a time when the station was hit with mass layoffs, and every laid-off employee was younger than Snepp.

Williams urged the jury to consider the credibility of Snepp's testimony, and that of the fellow former colleagues he had called to the stand to testify that they heard Burns and other managers make disparaging comments about Snepp's age, pointing out an “avalanche” of examples of Snepp and others changing their testimony from their sworn declarations or depositions to what they said in court.

Williams closed his argument by telling the jury that believing Snepp's side of the story required leaving reality, and instead joining a world where employees can ignore the direct commands of their supervisors and ignore their job duties.

“Mr. Snepp's world should be brought in line with the real world, where people listen to their bosses and adapt to change,” he said.

Snepp is represented by Suzelle Smith, Don Howarth, Jessica C. Walsh and Ames Smith of Howarth & Smith.

NBC is represented by Bart H. Williams, Manuel F. Cachan, Margaret G. Maraschino and Erin J. Cox of Munger Tolles & Olson LLP.

The case is Frank W. Snepp v. NBCUniversal Media LLC et al., case number BC523279, in the Superior Court of the State of California, County of Los Angeles.

--Editing by Aaron Pelc.]]><![CDATA[NBC Can't Nix Peabody-Winning Reporter's Age Bias Suit]]>Mon, 31 Aug 2015 00:20:39 GMThttp://ames-law.com/posts/nbc-cant-nix-peabody-winning-reporters-age-bias-suitNBC Can't Nix Peabody-Winning Reporter's Age Bias Suit 

By:  Bonnie Eslinger

Law360, Los Angeles (August 28, 2015, 7:47 PM ET) -- A California judge on Friday refused to toss age discrimination claims against NBCUniversal Media LLC brought by a fired investigative journalist, saying the Peabody Award-winning reporter needn’t show he was replaced by someone significantly younger to prove older workers in the newsroom were treated less favorably.

Los Angeles Superior Court Judge Stephen Moloney’s ruling keeps journalist Frank W. Snepp’s suit on track for a Nov. 2 trial. A reporter for the network's Los Angeles affiliate, KNBC-TV, Snepp sued in October 2013, alleging he was the victim of the station's efforts to appeal to a younger demographic when he was terminated in October 2012 at age 69.

In its motion for summary judgment, NBC argued that Snepp's claims of age discrimination failed because he couldn’t prove he was performing competently in his position when he was fired. He also couldn’t establish he was replaced by someone significantly younger, the network said.

Judge Moloney said in his Friday ruling that NBC’s reliance on another age discrimination case, Hersant v. Dept. of Social Services, to make that point was misguided.

“Hersant expressly stated that it was unclear whether replacement by a younger person is a required element of the prima facie case,” Moloney wrote in his ruling. “Indeed, the prima facie case only requires circumstances that suggests discriminatory motive ... for which the analysis is whether otherwise similarly situated employees were treated more favorably.”

NBC claims Snepp was terminated for poor job performance, not for being too old.

Judge Moloney said while Snepp couldn’t establish pretext by “simply disputing the legitimate reasons” the network put forward for his firing, the journalist had presented sufficient evidence raising triable issues of fact on his claim that age was the real reason NBC dumped him.

Snepp, who was a chief intelligence analyst for the Central Intelligence Agency in North Vietnam during the Vietnam War, has decades of television news experience under his belt. He was hired by NBC in 2005 at the age of 61. One year later, he earned the prestigious Peabody Award for a four-part series that investigated environmental and safety hazards at the site of commercial-residential development in southwest Los Angeles.

According to Snepp's complaint, around 2009, NBC started focusing on its online content, and began marginalizing Snepp and other older employees. In August 2010, there was a change in leadership at the station: Vickie Burns, the new news director, frequently stated her desire to appeal to a young audience of 20-somethings, Snepp said.. Once, at a morning staff meeting, Snepp alleges that Burns turned to him and said, ‘Some people just see you as a grumpy old man who oughta just quit.'"

Burns also allegedly scolded another manager, NBC Platform Manager Todd Reed, after he put Snepp on air to provide commentary for the breaking story of Osama bin Laden’s death in May 2011.

"Mr. Reed believed he had been instructed to pull plaintiff because he was an old 'veteran' employee,” Snepp’s suit states. “Plaintiff and Mr. Reed agreed that older employees seemed to be losing out in the newsroom.”

Snepp's civil complaint says his experience with ageism was not unique. Throughout his employment, he made several complaints about the company's apparent age discrimination, including submitting a 150-page summary of his experiences to his superiors. Snapp's suit also claims he was retaliated against for speaking out about the age discrimination at the station.

That cause of action, however, was struck Friday by Judge Moloney, who agreed with NBC that Snepp failed to show a causal link between his complaints about age discrimination to the network’s human resources and legal departments and the news managers who fired him.

“Even if the Court considered Plaintiff’s ... self-assessment as protected activity, no evidence is presented to support knowledge by the decision makers of any protected activity asserted by Plaintiff,” Judge Moloney wrote.

Representatives for the parties could not be reached for comment on Friday.

Snepp is represented by Suzelle Smith and Ames Smith with Howarth & Smith.

NBC is represented by Janice P. Brown, Stacy L. Fode and Meagan E. Garland of Brown Law Group.

The case is Frank W. Snepp v. Comcast Corp. et al., case number BC523279, in the Superior Court of the State of California, County of Los Angeles.

— Additional reporting by Alex Lawson and Brandon Lowrey. Editing by Ben Guilfoy.

]]><![CDATA[Pepperdine 1L Appellate Arguments]]>Wed, 08 Apr 2015 21:03:59 GMThttp://ames-law.com/posts/pepperdine-1l-appellate-arguments
Picture
Congratulations to each of the Pepperdine 1Ls who participated in last week's mock appellate arguments, judged by Professor Adamson, Dean Tacha, and Ames Smith (pictured above with one of the final teams). Thanks to the Pepperdine Law School, Professor Adamson, and Dean Tacha for inviting Mr. Smith to act as a judge. All of the students who participated were impressive and are to be commended for participating so fully in the exercise. We hope that Mr. Smith will have the privilege of working with such bright students and master jurists again soon in the future.
]]><![CDATA[Ames Smith to judge Pepperdine Law 1L mock appellate arguments]]>Mon, 30 Mar 2015 15:37:22 GMThttp://ames-law.com/posts/ames-smith-to-judge-pepperdine-law-1l-mock-appellate-argumentsMr. Smith has been invited to judge the mock appellate arguments of the Pepperdine Law School 1L class this Thursday, April 2, 2015. He is humbled to have the opportunity to be on the judging panel with estimable and accomplished jurists Professor Adamson and Dean Tacha, and looks forward to meeting the outstanding members of the class of 2017.]]><![CDATA[Introduction to Prenuptial Agreements in California]]>Mon, 30 Mar 2015 15:27:59 GMThttp://ames-law.com/posts/introduction-to-prenuptial-agreements-in-californiaAuthors: Roxana Ahmadian and Ames Smith

What is a prenuptial agreement?

A prenuptial or premarital agreement (also known as a “prenup”) is a contract signed by a couple before marriage (or domestic partnership) that specifically describes how the couple’s assets will be divided in the event of divorce. However, prenups are not limited to the division of assets. Prenuptial agreements can set terms and conditions for many other aspects of the marriage.

In California, the right to a prenuptial agreement is codified by California Family Code section 1500, which states: “The property rights of spouses prescribed by statute may be altered by a premarital agreement or other marital property agreement.” People often forget that the terms and conditions of marriage are already governed by law, specifically the California Family Code. A prenuptial agreement allows couples to change those standardized terms and conditions as they wish--within some reasonable limits, as discussed below.

What aspects of a marriage can a prenup affect?

California Family Code section 1612 outlines all matters a couple can address in a prenuptial agreement. Under this statute, a prenuptial agreement can modify rights and obligations of each spouse regarding property, the allocation of property, the makings of wills and trusts, death benefits, choices of governing law, spousal support, or any other matter that does not violate public policy, a criminal statute, or the right to child support.

As evidenced by the length of this list and the reference to “any other matter,” prenuptial agreements provide couples with an almost unlimited tool to customize their marriage contract.

What shouldn’t be in a California prenup?

An important rule in drafting prenups is that the terms cannot violate public policy. In California, preserving the power of the courts to act in the “best interests of the child” is a matter of public policy. See e.g. In re Marilyn H., 5 Cal. 4th 295, 307 (1993) (“the welfare of a child is a compelling state interest that a state has not only a right, but a duty, to protect.”). Therefore, couples would be well advised to avoid agreements that touch on the future rights of their children, such as child support or child custody. Including such terms in your prenup may be seen as violating public policy and invite a court to disregard those terms--or even the entire agreement.

Some attorneys recommend to their clients that they leave out mention of spousal support as well. This is because it is viewed as waiving an important marital right, which might leave one partner or the other in a vulnerable financial position after marriage.

In a California prenup, avoid any provisions that could be viewed by a court as “promoting divorce.” In California, it is against public policy to promote divorce. See In re Marriage of Noghrey, 169 Cal. App. 3d 326, 329 (Ct. App. 1985). Thus, a prenup which provides for a large payment to be made to one spouse only in the event of divorce (e.g. “I will pay you ten million dollars if we get divorced”) would likely be unenforceable as promotive of divorce.

Another public policy related to prenuptial agreements in California is the concept of “no-fault” divorce. A prenup that provided for penalties in the event of sexual infidelity was found to violate the public policy of “no-fault” divorce in California, since the agreement sought to find the offending party at fault and impose a penalty. See Diosdado v. Diosdado, 97 Cal. App. 4th 470 (2002).

When can I get a prenup?

Generally, you can get a prenup anytime before marriage. The prenuptial agreement of Barry Bonds was famously upheld by the California Supreme Court despite being signed the day before he married. However, the rules have become more strict since then--if one of the parties to the prenuptial agreement is not represented by an attorney, a seven-day waiting period applies under California Family Code section 1615(c) and the rule of In re Marriage of Cadwell-Faso & Faso, 191 Cal. App. 4th 945 (2011).

Nonetheless, it is recommended that you allow some time between executing the prenup and your wedding day to avoid any appearance that one partner was ambushed or forced to sign, which could invalidate the agreement.

Can my partner and I use the same attorney?

It is important for each partner contemplating a prenuptial agreement to have his or her own attorney. Not having your own independent attorney means that the agreement might be unenforceable in court. This is to ensure that the agreement is fair to both sides.

Technically, it is possible for both partners to use one attorney in relation to a prenuptial agreement, however ill advised. In order to do so effectively, it is critical that both partners sign separate documents waiving independent representation, as described in California Family Code 1615(c)(1).

What steps should I take before contacting an attorney?

For both partners, make a list of all of your personal assets and debts. This includes statements reflecting balances in bank and investment accounts, as well as any significant personal property (e.g. car, Picasso painting, golden statue) and real property (i.e. land, houses) that you own. For debts, the most common include student loans, mortgages, and credit card debt. Get your credit score and your partner’s. It is absolutely critical to note in your list any business that you have an ownership interest in before the marriage so that your attorney can take steps to keep your business separate from the marriage--unless you want to have your spouse as a business partner!

If you have any property that you already own jointly with your partner or joint bank accounts, take note of those items for your attorney. If you are planning to have children, and one partner is planning to be a stay-at-home parent while the other works, make sure to advise your attorney of these plans as well. If one partner has plans to go to college or graduate school full time while the other partner works to support them, let your attorney know. In general, it is best to have a comprehensive and open discussion with your partner and your attorney about your financial plans for your marriage, but starting with the points listed above will help you avoid some common pitfalls.


Do I really need a prenup?

This is a matter of opinion. Some attorneys take the position that partners should always have a prenuptial agreement before marriage to protect themselves and set the terms for their own marriage. Other attorneys say they are not necessary; some even view prenups as destructive to a nascent marriage.

Many attorneys will agree that for a young couple with relatively little assets, who are both getting married for the first time, a prenuptial agreement will have less importance. Such a couple has less at stake; without substantial initial personal assets, there will be little difficulty on divorce regarding distinguishing personal and community property. Conversely, individuals who are on their second marriage or beyond or who will be coming into the marriage with substantial personal property should seriously consider having a prenuptial agreement to ensure those assets are kept separate, if such is desired.

If you are considering a prenuptial agreement, it’s important to consult with an attorney as soon as possible to find out whether a prenup is right for you and your partner, and whether any particular terms one or both of you may be considering will be appropriate in a California prenup. If you’d like to learn more, please don’t hesitate to call or e-mail attorneys Ames Smith or Roxana Ahmadian today.]]><![CDATA[Legal Guardianship in California: what is it, and is it right for you?]]>Fri, 13 Mar 2015 00:33:53 GMThttp://ames-law.com/posts/legal-guardianship-in-california-what-is-it-and-is-it-right-for-youAuthors: Roxana Ahmadian and Ames Smith

What is legal guardianship?

A legal guardian assumes temporary responsibility for a child, generally until the child turns eighteen. In California, a legal guardianship is established when a court appoints an individual to care for a particular child and/or the child’s property. Although some guardianship cases are handled in dependency court, the majority of guardianship cases actually take place in probate court.

How does legal guardianship differ from adoption?

Adoption permanently terminates the rights of a child’s birth parents and places those rights with a new parent or set of parents. In contrast, legal guardianship of a child only suspends certain rights of the parents temporarily and vests those rights in the appointed guardian instead.

Significantly, adoptive parents remain the legal parents of the child even into adulthood and beyond death. This is very different from guardianship. Legal guardians lose both their authority and responsibilities when the guardianship automatically terminates when the child turns eighteen, is adopted, marries, or dies. Courts may terminate a guardianship for other reasons as well: for example, when the child, guardian or parent successfully petitions for the court to terminate the guardianship, the court finds the guardianship is no longer necessary, or the court finds the guardianship is no longer in the best interest of the child.

What are the rights and obligations of a legal guardian?

Under legal guardianship, certain parental rights are suspended and vested into the guardians. These rights include the parents’ rights to physical and legal custody of the child. These rights, now vested in the guardian, impose the obligation as well as the authority to make decisions for the child normally made by a parent. Such decisions concern, for example, education, medical treatment, and general supervision.

Of course, there are certain limitations to the power of the guardian. For example, if the guardian wants to move the child out of California, the guardian must first get court approval. The guardian would also need court approval to permit the child to marry. Nonetheless, guardians have extensive powers, such as authority to consent to the child’s enlistment in the armed services, a decision that may follow the child well past the age of eighteen.

These rights and obligations can become a double-edged sword in some instances. For example, a guardian can give consent for the child to get a student driver’s license, but in doing so the guardian accepts both the obligation of paying for car insurance as well as any civil liability arising out of the child’s negligent and even intentional acts behind the wheel.

Are there different kinds of legal guardianship?

Temporary Guardianship

The time between filing a petition for general guardianship and a court hearing to decide the issue is generally six to eight weeks. That means that in many cases the child is without a much-needed guardian for two months. The solution to this predicament is a temporary guardianship. Temporary guardianship petitions are heard approximately five days after filing. Thus, when circumstances require the child to have a guardian as soon as possible, it is critical to file a petition for temporary guardianship simultaneously with the petition for general guardianship. The result of this double filing is that the child, instead of waiting in limbo, has a guardian appointed within a week on a temporary basis (provided the hearing goes well) until the date of the general guardianship hearing.

Joint Guardianship

In situations such as where a child’s parent has a life-threatening condition and wishes to share authority and responsibility for the child with another person without terminating their own parental rights, joint guardianship provides this option. In establishing a joint guardianship, the parent is not suspending his or her own parental rights, but rather sharing the authority and obligations with a third party. This third party, the guardian, will then be able to step in if or when the parent becomes too ill to care for the child.

Is legal guardianship right for me?

If you find yourself in a position in which you take care of someone else’s child, but find you run into problems due to your lack of authority in making decisions for the child, you should consider petitioning to become the child’s legal guardian. Depending on whether or not it is necessary to be appointed in less than two months, you might additionally consider a simultaneous petition for temporary guardianship. The individual petitioning to be appointed guardian is often a grandparent or other relative, but it’s worth noting that both related and unrelated guardians may be eligible for financial assistance.

If you care for a child only on occasion when the parent is dangerously ill, you and the parent should consider petitioning to be joint guardians so that you can avoid issues that arise when the parent becomes too ill to continue caring for the child.

Guardianship is appropriate when individuals are only seeking to suspend, not terminate, the parents’ decision-making rights for their child so that they themselves have the powers and duties over the child’s care. If the individuals are seeking to terminate the parent’s rights and become the child’s legal parents instead, then they should be looking into adoption. You can find out more about adoption and its different variants in our previous article: Independent vs. Agency Adoption: Which Is Best For Your Family?
]]><![CDATA[Independent vs. Agency Adoption: Which Is Best For Your Family?]]>Sat, 28 Feb 2015 02:51:18 GMThttp://ames-law.com/posts/independent-vs-agency-adoption-which-is-best-for-your-familyAuthors: Roxana Ahmadian and Ames Smith

One of the first decisions couples or individuals face after they have made the initial decision to adopt is who to trust to handle the adoption process. In California, there are two main options for handling domestic adoptions: either the independent or agency route. Figuring out whether to go with an independent adoption or to an agency can be confusing and frustrating. However, by understanding what the differences are between the two types of adoptions, and learning the advantages and disadvantages each has to offer, adopting families can better make an informed decision and reduce at least some of the frustration and inefficiency.

AGENCY ADOPTION

Historically, most couples or individuals interested in adoption would adopt through an adoption agency. Adoption agencies are licensed by the State of California to place children with adoptive parents. There are “public” and “private” agencies. Public agencies are generally operated by the Department of Social Services of the counties they serve. Private agencies are privately funded organizations. The child is first “relinquished” to the legal custody of a licensed adoption agency. This terminates the parental rights of the birth parents. The child is then placed by the agency with an adopting family approved by the agency.

It should be noted that agency adoption is the only avenue available for families who wish to adopt a child with “special needs” if that family wants to benefit from the Adoption Assistance Program (AAP). Under AAP, in an adoption conducted at least in part by a licensed agency, if the child is deemed to have “special needs,” the adopting family may be eligible to receive federal subsidies from the government to cover costs incurred as a result of the child’s condition. Therefore, if the adopting family knows, or has reason to believe, that the child they want to adopt has “special needs,” it is strongly recommended that the family contact an adoption attorney for specific guidance and strongly consider adoption through a licensed agency rather than an independent adoption.

In addition to the financial advantage of possible government funding for parents seeking to adopt a special needs child, there are other advantages of agency adoption which apply to any adoption. A major advantage of an agency adoption is that the process is subject to licensing and regulation by the State. One benefit of this is that upon the “relinquishment” of the child to the licensed agency, the birth parents’ parental rights are terminated. Therefore, the transfer of rights regarding the child goes from the parents to the agency and then to the adopting parents. This middle step reduces almost entirely the issue of birth parents changing their minds before the child is placed with the adopting parents. Another benefit of agency adoption is that agencies pre-screen adopting families prior to placement and provide counseling for all parties involved, which can often result in a smoother process and reduce miscommunication among the parties.

However, agency adoptions are not without their disadvantages. The biggest downside for most people interested in adopting is that agency adoptions usually involve long wait periods. It is common for agencies to have waiting lists of potential adoptive parents, and the wait is typically a few years or more. Also, a pre-placement home study is required for agency adoptions, and this can be expensive. Also agency adoptions use more “off the rack” processes with formulaic methods designed to try and fit all situations. The agency process has been characterized by some critics as intrusive, stifling, and bureaucratic. In agency adoptions, the birth parents have very little say in matters of the adoption.

INDEPENDENT ADOPTION

An independent adoption occurs when prospective adopting parents locate birth parents directly and arrange an adoption with the help of an attorney and without the use of an agency. It is noteworthy that the vast majority of newborn adoptions in California, as contrasted with adoption of infants and older children, are independent adoptions conducted by attorneys, with relatively few newborn adoptions conducted through agencies.

The chief advantage of an independent adoption is that both birth parents and adoptive parents have more freedom and control over the process. This is designer adoption which by its nature can be structured specifically to fit the needs and personalities of those involved. Many of the restrictions and red tape of an agency adoption can be avoided through an independent adoption. Among other things, this should result in substantial time saved over agency adoption -- independent adoptions generally involve far shorter waiting periods. Unlike agency adoption, independent adoption offers adoptive parents the option of having either a pre-placement home study through a private adoption agency or a post-placement home study through their state or county Department of Social Services.

Another major advantage of independent adoption is direct placement. Unlike agency adoption where birth parents relinquish their parental rights to the agency, an independent adoption allows the child to be directly placed with the adopting parents. Removing this middle step typically reduces or eliminates time in foster care. This is often very important to both sets of parents, who generally want to avoid exposure to the foster care system. Independent adoption also operates by “consent” rather than “relinquishment.” In agency adoptions, the birth parents “relinquish” their parental rights to the agency, making the agency the temporary “parents” of the child until placement. However, in independent adoptions, birth parents are required to “consent” to the adoption. This is good news for adopting parents who may want to avoid the child being placed in foster care, and can also serve the interests of birth parents, because it gives them a voice in the process and requires their agreement to the ultimate placement of their biological child.

Independent adoption has some disadvantages as well. Independent adoption is subject to regulation by the state, but because attorneys are not regulated to the same degree as agencies, the level of skill and professionalism varies from attorney to attorney. It is important to carefully consider the attorney you choose to conduct an independent adoption on your behalf. Additionally, unlike with agency adoption counseling is not going to be automatically available, so you should work with your attorney to make counseling arrangements.

Another major consideration of an independent adoption is that there is no agency serving to connect the prospective adopting parents with birth parents. Adopting parents must conduct their own search to locate a birth mother willing to allow adoption. The search for birth parents can be costly and time-consuming. Prospective adopting parents and their attorney must carefully screen responses to advertising to ensure that they are legitimate and that the birth parents are a good match for the adopting family.

For some, the lack of rigid structure and state regulation can be perceived as a disconcerting negative of independent adoption. Others may be wary of independent adoption because the birth parents have greater rights and more control than they otherwise would with an agency.

If you are considering adoption, you need professional advice from the start. Call us today!

Although agency adoptions have advantages, particularly for children with special needs, the vast majority of families adopting newborns choose to proceed with an independent adoption. With all of the concerns that come with the decision to put your child up for adoption, or to adopt a child into your family, most people want the most flexible, least costly, and overall parent-friendly approach to adoption. Independent adoption may fit those needs better than agency adoption. Protecting your child from being in foster care is reason enough for many to choose independent adoption. Avoiding the bureaucracy and red tape of agency restrictions may seal the deal for others.

No matter which method you choose to pursue for your family, it is always advisable to contact an adoption attorney for analysis and advice specific to your unique situation from the very start. If you would like to learn more, do not hesitate to contact us today via phone or email for a free initial consultation.

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