Arizona SC Justice: AZ Statute on Termination of Parental Rights Unconstitutional

September 23, 2018 by Robert Franklin, Member, National Board of Directors, National Parents Organization

This is the final post on the Arizona Supreme Court’s disastrous ruling in Alma S. vs. Department of Child Services.

Justice Bollick agreed with the majority holding that the evidence at trial was sufficient under the applicable law to warrant terminating Alma’s rights.  In his written opinion however, he slams both the state’s highest court and Arizona law as in violation of the U.S. Constitution.

Here is how he describes Alma:

DCS and the guardian ad litem agreed that Mother maintained a bond with her children and possessed adequate parenting skills.

She’d also fulfilled all of the rehabilitation requirements imposed on her by the Department.  So how does the court figure that Alma is an unfit parent?  It did so because, under the Arizona statute governing the matter, a parent need fail to comply with a single laundry list item a single time for a finding of unfitness.  In Alma’s case, that seems to have meant this section of the statute:

2. That the parent has neglected or wilfully abused a child.  This abuse includes serious physical or emotional injury or situations in which the parent knew or reasonably should have known that a person was abusing or neglecting a child.

Indeed, when Alma came home from work to find one of her children injured, apparently by its father, she waited until the following day to have the child see a doctor.  As I mentioned on Friday, nothing in the record indicates that that half-day lapse in any way affected the child’s health or well-being.  Plus, Alma took part in extensive rehabilitative services to ensure that she understood the seriousness of leaving a child with a person who’d previously abused it.

But, having once failed, she was out of luck.  The die was cast and DCS was not about to admit that Alma’s kids didn’t need to be adopted.

And that is what Justice Bollick finds constitutionally defective.  To fail to take into account a parent’s successful efforts to improve his/her parenting amounts, according to Bollick, to a constitutionally defective statute.

The primacy of parents in the upbringing of their children is a bedrock principle of American constitutional law. See, e.g., Prince v. Massachusetts, 321 U.S. 158, 166 (1944) (“It is cardinal with us that the custody, care and nurture of the child reside first in the parents . . . .”); Troxel v. Granville, 530 U.S. 57, 65 (2000) (plurality) (“[T]he interest of parents in the care, custody, and control of their children [] is perhaps the oldest of the fundamental liberty interests recognized by this Court.”); Stanley v. Illinois, 405 U.S. 645, 651 (1972) (listing cases). The principle of parental sovereignty is one that has distinguished our exceptional nation from authoritarian regimes….

“The fundamental liberty interest of natural parents in the care, custody, and management of their child is protected by the Fourteenth Amendment, and does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State.” Santosky v. Kramer, 455 U.S. 745, 753 (1982). Parents faced with “irretrievable destruction of their family life” have a “critical need for procedural protections.” Id. Thus, “[w]hen the State moves to destroy weakened familial bonds, it must provide the parents with fundamentally fair procedures.”…

A glaring omission from the statute, from a due process perspective, is its failure to expressly require consideration of a parent’s rehabilitation where the statutory ground for termination does not necessarily suggest permanent unfitness…  [I]n Santosky, the state was required in the neglect context to make diligent efforts to encourage and strengthen the parental relationship…  No such explicit requirement either on the state’s part to engage in such efforts, nor on the juvenile court’s part to consider such efforts, is present in Arizona’s statutory scheme. 

And that is why I hope Alma will ask that her case be heard by the U.S. Supreme Court.  If she does so, I would think the Court would be strongly inclined to hear her case.  After all, Bollick’s opinion is an open invitation to declare the Arizona statutory scheme to be in violation of the 14th Amendment.

Bollick’s opinion contains not just interesting legal arguments, but some interesting facts as well.

Termination proceedings in Arizona nearly always result in permanent severance of parental rights. According to Department of Child Safety (“DCS”) statistics, from October 2007 to March 2008, petitions for termination encompassed 510 children, and 484 severances were granted. Ariz. Dep’t of Econ. Sec., Child Welfare Reporting Requirements: Semi-Annual Report for the Period of October 1, 2007 Through March 31, 2008, at 61 (2008). From April to September 2017, ten years later, the number of petitions increased markedly to 3,097, and 3,095 (99.94%) were granted.

Yes, 10 years ago, the rate at which the state succeeded when it sought termination of parental rights was 94.9% and today it’s 99.94%.  In short, when it asks for termination, DCS always gets what it wants in juvenile court.

More astonishing is the jump in the number of cases in which termination was sought.  A whopping six-fold increase in those cases occurred in the ten years from 2007-8 to 2017.  There’s not a chance that Arizona parents are so dramatically worse than they were just 10 years ago. 

But there’s a good chance that the state is becoming ever more intrusive into family life and, with a statute as family-averse as the one criticized by Justice Bollick, why wouldn’t it be?  The U.S. treasury pays the state for every child adopted out of foster care, the juvenile court rubberstamps every effort at termination and the applicable statute greenlights the whole process.

With that, my friends, ends another chapter in the ongoing saga entitled “The Best Interests of the Child.”

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