Division III: Even with Identified Adoption Alternative, No Continuance and a Wrong Result
This, in the legal community, is what we refer to as serendipity. The previous case I just blogged was about arbitration, a form of alternative dispute resolution. We attorney-types call it A.D.R. for short. The previous opinion was all about how a developer’s ADR clause was 86’d because the governing statute trumped. In-short, it, also, was about the termination of ADR.
This case is a little different though, its a parentage case. Here, the issue was whether the court should have granted a continuance for the parent to pursue an open adoption. When did this occur? At the start of trial.
Let us recap the last couple similar opinions:
- A last minute continuance for a lawyer can be denied in a dependency proceeding unless you can show that you have a new lawyer ready to go;
- A last minute continuance for a new guardian for the children requires you have identified a person to act as the guardian.
So what do you think the Court would require for a last minute attempt at setting up an open adoption? That’s right, identification of someone to whom you would adopt the children. Speculation at the last minute does not get you a continuance. Now, here, the record seems to indicate there was an actual potential of an open adoption with the foster parents. That seems to fall on the identifiable end of the spectrum and differs significantly from the two cases above, where nothing was identified. Here is the bit that I think Division III gets wrong:
Without a continuance, Mr. Minor could still try to pursue negotiations during trial recesses, or at the end of the trial day. He could have asked the court to recess early, so the parties and the adoptive parents could confer. He could have asked the court to take the termination issue under advisement (which the court ultimately did), thereby giving him time to explore alternatives. He could have pursued discussions in the six days following the trial and before the court dispatched its letter ruling. Given all of these alternatives, Mr. Minor cannot demonstrate prejudice or that the result of the trial would likely have been different.
If this goes up on appeal, I think he may stand a good shot. There was an identified adoptive family that Minor was working with. Pragmatically, the trial does not allow him the opportunity to continue developing the potential for an open adoption. While he certainly could have started earlier, the weight of the case law goes towards identification of the alternative, not fully developing the alternative, to ask for the continuance. Otherwise, there would be no need ever for a continuance, as any alternatives would have been developed before trial.
While Issaquah Legal Services does not practice in Family Law at present (we hope to add a Family Law attorney to our rosters soon), we are more than happy to recommend a good Family Law Attorney.