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Attorney, Dallas Divorce Lawyer | Family
Law | Dallas, Texas | Plano & Collin County
Nursing
Home Problems
Once an elder person or the
family of the elder person makes the decision to place the
elder in a nursing home, they must select a nursing home.
After selecting a nursing home problems may arise.
The first thing that the
elder must know and realize is that he or she has rights when
living in the nursing home. The elder should communicate with
his or her family about any concerns or problems that arise
while residing in the nursing home. The family members should
then go to the nursing home staff to discuss the elder's
issues and concerns.
Protection of an Elder's Rights and Dignity While in the
Nursing Home
The elder should not lose rights or dignity upon admission to
the nursing home. The elder should still have:
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Privacy
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Freedom to do activities
or visit with friends and family
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Choice of clothing and
food
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Control over their
finances
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Right to chose a doctor
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Right to make decisions
about their medical treatment unless a healthcare power of
attorney was executed
The Nursing Home Resident's
Bill of Rights assists residents of nursing homes in keeping
their privacy and dignity. The Bill of Rights protects the
most basic rights of the residents. The nursing home facility
is required to comply with the Bill of Rights if certified by
Medicare or Medicaid.
When the Nursing Home Fails to Properly Respond
If the nursing home fails to properly respond to the elder's
concerns, the elder's family may want to join or start an
advocacy group for the residents of the nursing home to
address certain concerns. The family may also contact a local
or state agency that oversees nursing homes in an attempt to
have the elder's concerns addressed. If the concerns or issues
raised involve neglect or abuse, then the elder should be
removed from the nursing home facility.
Neglect and Abuse of Residents
Unfortunately, the elder may receive poor care while in the
nursing home facility. Often times poor care results in
untrained or uncertified staff members or because the facility
is understaffed. Some signs that may indicate that the elder
is the victim of neglect include:
The elder may also be
abused by nursing care facility staff members. The elder may
either be physically or psychologically abused. If abusive
behavior results, the elder should be removed from the
facility. The elder or members of the family should file a
complaint with the nursing home facility and/or report the
abuse to the proper agency in the state. Given the level of
abuse, the elder may discuss the potential of criminal charges
being lodged against the facility. The elder may also desire
to file a civil suit against the staff members and/or the
nursing home facility.
Child Welfare Agencies' Potential Malpractice Liability for
Inadequate or Inappropriate Foster Care Services
If a child welfare agency
or caseworker determines that a child needs to be moved into
protective custody, the agency's duty to that child is not
discharged. The agency or caseworker has a continuing duty to
ensure that the child is not mistreated in her foster care
home.
Many of the children in the
foster system are in need of special placements given their
own special needs. Further, the agency or caseworker should do
everything possible to ensure that the child is not a danger
to others. The agency or caseworker should make every attempt
possible to match the child with the proper foster family.
Plaintiffs
If the agency or caseworker improperly placed a child with a
foster family and failed to ensure the child's safety, they
may be liable for malpractice. The child herself may sue or
the birth parent. If the child is harmed by the placement, the
agency may be liable if they did not act in a reasonable
manner in placing the child.
The foster parent may also sue the agency or caseworker on the
basis of malpractice. If the child is violent, for example,
and the agency or caseworker neglected to inform the foster
parent of this fact and an incident occurs, the agency or
caseworker may be liable.
Liability
Before the agency or caseworker may be found liable for
malpractice, the plaintiff must show that either the agency or
caseworker violated a specific duty owed to the child. Often
times a showing that the agency or caseworker failed to follow
the basic administrative guidelines will be sufficient to show
that the agency or caseworker is liable.
Inadequate Foster Parents
Some foster parents are clearly inadequate. Abuse and neglect
occur in many foster care homes. The child or birth parent may
sue the agency or caseworker for negligence when abuse or
neglect results in the foster care home. If the agency or
caseworker does not follow the proper channels or adequately
research the foster care home, either may be liable.
Dangerous Foster Children
Agencies and caseworkers may also be sued for the harm caused
by the child that they have placed. The child need not be
prone to violence or misbehavior in order to pose an
actionable danger to the foster parents. However, in order for
the agency or caseworker to be found liable, the plaintiff
must show that either the agency or caseworker was negligent
in the placement process. The agency or caseworker must have
known, or had sufficient reason to know, that the child posed
a danger to the foster parents or others, and placed the child
anyway without taking any action to protect or warn the foster
parent.
International Adoption - Orphan Petition
Persons who wish to adopt a
child from a foreign country must file an "Orphan Petition"
with the United States Bureau of Citizenship and Immigration
Services (USCIS). The full name of the petition is "Form
I-600, Petition to Classify Orphan as an Immediate Relative."
The USCIS must determine
that the child is an "orphan" within the meaning of U.S.
immigration laws and approve the petition before the child
will be permitted to enter the U.S.
What is an orphan?
U.S. immigration laws
define an "orphan" as:
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A child who has no
parents because both parents have died, disappeared, or
abandoned the child; or
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A child with one
surviving parent who is unable to provide for the child's
basic needs and has consented to the child's adoption and
immigration to the U.S.
Is there an age
restriction on orphans?
Yes. Generally, an Orphan
Petition must be filed before the child's 16th birthday.
However, an Orphan Petition may be filed before the child's
18th birthday if the child is adopted with or after the
adoption of the child's sibling by the same adoptive parents.
Who can file an Orphan
Petition?
A married U.S. citizen and
his spouse or an unmarried U.S. citizen who is at least 25
years old may file an Orphan Petition.
What documentation must
be submitted along with the Orphan Petition?
The following must be
submitted with the petition:
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Fingerprints for each
prospective parent;
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Proof of the prospective
parents' U.S. citizenship or lawful immigration status in
the U.S.;
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Proof of the marriage of
the prospective parents, if they are married;
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Proof of the legal
termination of any prior marriages;
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Proof of compliance with
any state pre-adoption requirements;
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Proof of an approved home
study;
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Proof of the child's age
and identity;
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Proof that the child is
an orphan within the meaning of U.S. immigration laws;
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Proof that the
prospective parents have legal custody of the child if they
did not adopt the child in the child's home country;
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A final adoption decree
if the child was adopted in the child's home country; and
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* A filing fee.
For what reasons may the
USCIS deny an Orphan Petition?
The USCIS may deny an
Orphan Petition if it determines that:
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The child is not an
orphan;
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A prospective parent is
physically, mentally, or financially unfit to raise the
child;
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A prospective parent has
a history of abuse, violence, or criminal activity; or
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A prospective parent will
not provide suitable living conditions for the child.
Adoption and Safe Families Act -
Termination of Parental Rights
The Adoption and Safe
Families Act (ASFA) requires a state to file a petition to
terminate a parent's parental rights to a child if:
(1) the child has been in foster care for
15 of the most recent 22 months;
* The period begins to run on the earlier
of the following two dates: the date of the first judicial
finding that the child has been abused or neglected, or 60
days after the child has been removed from his or her home.
(2) a court has determined that the child
is an "abandoned infant" as defined by state law; or
(3) the parent has been convicted of murder
or voluntary manslaughter of another child of the parent, the
parent has been convicted of aiding, abetting, attempting,
conspiring, or soliciting to commit such murder or voluntary
manslaughter, or the parent has been convicted of a felony
assault that has resulted in serious bodily injury to the
child or another child of the parent.
The ASFA does not require a state to file a
petition to terminate parental rights if:
(1) the child is being cared for by a
relative;
(2) the state has documented in the case
plan a compelling reason for determining that such a petition
would not be in the best interest of the child; or
(3) the state has not provided the services
necessary for the safe return of the child in a case in which
the state is required to make reasonable efforts to reunify
the child's family.
Domestic
Violence and Custody Issues
Domestic violence is
conduct perpetrated by a spouse, family member, or any other
person residing in the household. The State does not get
involved in domestic violence issues unless the abuser has
violated a criminal statute such as assault or battery.
Violent events in the household constitute domestic violence
if the victim is a family member or lives with the abuser.
Domestic violence is the leading cause of
injury to women. Typically a victim is a woman between the
ages of 20 and 35. More than three million women are the
victims of domestic violence each year.
A Victim's Profile
The victim of domestic violence often lacks
self-confidence and self-esteem. It is difficult for the
victim of domestic violence to leave the abusive situation
because they are often fearful for their lives. The victim is
often afraid to leave the abuser due to threats, finances,
children, and religious issues. The victim also tends to feel
an extreme amount of shame because they often blame themselves
for the abuse or for continuing to stay in an abusive
relationship.
An Abuser's Profile
The abuser is typically a male spouse or family member. The
abuser may also be another individual that resides in the
household with the victim. The abuser can be either male or
female, however most often the abuser is a male. Some abusers
hold stable and respectable jobs and would not appear to have
the characteristics that other abusers share. Some
characteristics that abusers share include:
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Mental problems
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Emotional problems
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Alcohol or narcotic problems
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Anger management issues
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Unable to hold a job or sustain a career
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Controlling and domineering personality
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Abuser was abused as a child or witnesses
domestic violence in the household.
Types of Domestic Violence
When one usually thinks about domestic violence the first
thing that may come to one's mind is physical violence.
Physical violence is the primary type of domestic violence
that most victims endure. There are also other types of
domestic violence including:
- Severe degradation
- Threats on the victim's life or other family members
- Isolation from friends and family
- Verbal abuse
- Emotional abuse
Remedies for Victims of Domestic
Violence
A victim of domestic violence may seek to obtain a personal
protection order or permanent or temporary restraining order
against the abuser. Each state has different requirements for
seeking either a personal protection order or restraining
order. However, even if the victim obtains some type of
protection or restraining order, the abuser may still continue
their abusive behavior. The victim may file assault or battery
charges against the abuser. The abuser may be fined or
required to serve some jail time depending on the severity of
the offense and the abuser's criminal history.
The victim may go to a domestic abuse shelter if she decides
to leave the abusive situation. The shelters accept children
and permit the victim to stay there for a period of time.
Shelters are discrete places that the victim may go. The
shelters often have advocates that will assist the victim in
filing for protection or restraint orders. The advocates may
also assist the victim in filing for divorce, if the victim
was married to the abuser.
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