The Guardian- Season One
The Divide

Episode: 17

Production #: 117

First Air Date: March 12, 2002

Writer: David Hollander, Alfonso H. Moreno & Rick Eid

Director: Alan Myerson

Guest Stars:

Rusty Schwimmer as Barbara Ludzinski
Bruce Wietz as Mr Straka
Cyndi Martino as ?
John Patrick Amedori as Justin Damira
Logan O'Brien as Matthew
Micole Mercurio as ?
Jane Fleiss as ?
Vincent Cefalu as ?
Denise Dowse as Judge Rebecca Damsen
Cheryl White as Martha Damira
John Berg as Robbie Gersh
David Reivers as ?
Van Epperson as ?
Jason McCune as ?

Fan Rating: 8.75/10 (Average of all fan submitted ratings)


Nick Fallin's sense of fairness is put to the test when his most recent case takes an unexpected turn. Matthew, a child genius, and his older brother Justin, who suffers from brain damage, are brothers who are fighting to stay together as Matthew is about to be adopted separately.

However, in spite of the advantages in finding a home and having an opportunity to attend an accelerated school, Matthew feels a sense of obligation to Justin, whose condition is a result of an incident where he was protecting Matthew and their mother from one of her boyfriends. In his fight for justice, Nick discovers that their mother, who is mentally disabled, signed off on the adoption under the impression that the boys would remain together. Meanwhile, Jake Straka finds out that his parents are about to lose both their home and family business. Jake tries to offer financial assistance but realizes that he cannot provide enough on his own. In a desperate attempt to save his parents from financial ruin, Jake risks everything and violates key corporate law restrictions.

Case Law:

The storyline about the Damira brothers deals with termination of parental rights and adoption. If you want to know more about how the process works (or doesn't) in Pennsylvania, the excellent series of articles by Barbara White Stack entitled "When The Bough Breaks" is strongly recommended. In the Damira brother’s story, a mildly retarded mother signs a consent voluntarily relinquishing her parental rights to her two sons, Mathew and Justin. Relinquishment of parental rights is like a death sentence for a parent. It is a drastic step designed to free a child for adoption and provide an opportunity for a stable family life. However, in this story Nick believes there is evidence that the termination of parental rights was obtained by fraud in that the adoptive mother abused her position as the children’s former social worker.

Nick now faces two legal hurdles. His first appearance in court takes place as the Judge is considering the petition for Mathew Damira's adoption. Lulu is representing Mathew and when Nick objects to the adoption, Judge Damsen correctly points out that Nick has no legal standing, because Nick represents Justin, not Mathew. This means that Nick's client Justin has no right to be heard with regard to the adoption of his brother, Mathew. This is based on In Re L.J., 691 A 2d 520 where the court stated that there is no constitutional or statutory right that provides that siblings have the right to be raised together. Nick's second legal hurdle is to move to vacate, or undo, the termination.

Section 2711 of the Juvenile Act provides:

(a) General rule.--Except as otherwise provided in this part, consent to an adoption shall be required of the following:
(1) The adoptee, if over 12 years of age.
(2) The spouse of the adopting parent, unless they join in the adoption petition.
(3) The parents or surviving parent of an adoptee who has not reached the age of 18 years.
(4) The guardian of an incapacitated adoptee.
(5) The guardian of the person of an adoptee under the age of 18 years, if any there be, or of the person or persons having the custody of the adoptee, if any such person can be found, whenever the adoptee has no parent whose consent is required.
(b) Husband of natural mother.--The consent of the husband of the mother shall not be necessary if after notice to the husband, it is proved to the satisfaction of the court by evidence, including testimony of the natural mother, that the husband of the natural mother is not the natural father of the child. Absent such proof, the consent of a former husband of the natural mother shall be required if he was the husband of the natural mother at any time within one year prior to the birth of the adoptee.
(c) Validity of consent.--No consent shall be valid if it was executed prior to or within 72 hours after the birth of the child. A putative father may execute a consent at any time after receiving notice of the expected or actual birth of the child. Any consent given outside this Commonwealth shall be valid for purposes of this section if it was given in accordance with the laws of the jurisdiction where it was executed. A consent to an adoption may only be revoked prior to the earlier of either the entry of a decree of termination of parental rights or the entry of a decree of adoption. The revocation of a consent shall be in writing and shall be served upon the agency or adult to whom the child was relinquished.

The Statute provides that consent may only be revoked prior to the entry of the decree of termination or the entry of the decree of adoption. This reflects strong policy reasons for encouraging finality in adoptions. Consequently, we could not find any reported decisions in Pennsylvania revoking the termination of parental rights after the decree had been entered. This is not to say it hasn't happened in courts of first impression or could not happen in the future if the right case comes along. Nick's reasoning is based upon a number of cases in other States where a termination decree has been revoked on the grounds that the original consent was procured by fraud or duress and is not "voluntary, knowing and deliberate." In our story, the best evidence of this is that the mother was mildly retarded and her social worker took advantage of this by promising to keep Mathew and Justin together.

©2002 Almost Human