Category: Blog

September 27, 2018

The Oldham Era in Oldham County, Kentucky has two articles in its pages on the first in the nation shared parenting law in Kentucky. The first is an op-ed by Chair of the Kentucky Chapter Matt Hale, who had worked on the shared parenting bill since 2012. Read it here.  The second article is about the law’s roots in Oldham County, where Matt Hale is from. It is also the area where the sponsors of the bill Rep. Jason Nemes and Speaker Pro Tempore David Osborne, represent in the Kentucky legislature. The law had bipartisan support and has been popular among those in Kentucky. The hope is that this law’s popularity will convince the rest of the nation to pass shared parenting legislation. 

September 27, 2018 

Dan Deuel of National Parents Organization of Utah has written an op-ed in the Standard-Examiner for Suicide Prevention Awareness Month on the increased risk of suicide in divorced men and how changes in family law and parenting time could help. A highlight: “The University of California, Riverside conducted a study examining marital status and suicide. They found that the risk of suicide among divorced men was more than double that of married men. And divorced men are as much as eight times more likely to kill themselves than divorced women, overall.” Read the full op-ed here. 

September 27, 2018 by Robert Franklin, Member, National Board of Directors, National Parents Organization

Here’s a good article about Dianna Thompson’s new organization, Family Reunion (KGET, 9/25/18). Thompson of course is one of the truly fine advocates for shared parenting, reform of paternity fraud laws and family court reform generally. She’s been at this longer than most of us and done more to raise awareness of the many issues confronting fathers, mothers and children when they take the perilous step into family court.

Family Reunion, to its credit, advocates for shared parenting. The linked-to piece offers a brief comparison of two young people, one of whom (Ryan Rust) was raised by parents who shared parenting about equally post-divorce and another (Monisha Hossain) who was stuck with the usual primary maternal custody arrangement.

Former Family Reunion intern Ryan Rust credits the shared parenting model for making his parents’ split a little easier on him as a teen.

“It helped because it made me realize people can have it better,” Rust said. “They can go through a divorce easier with parents help and if parents can come together and truly be there for their child it can really benefit them through a time that’s really hard for them.”

It’s what we try to explain to judges and state legislators across the country: shared parenting makes divorce easier on kids. Truth to tell, it makes it easier on everyone. Dad doesn’t lose his kids and Mom doesn’t take on 80% – 100% of the parenting obligation. What’s not to like?

Sadly, Monisha Hossain has a different story to tell.

Hossain’s parents divorced when she was 5.

“My mother got full custody of me and my brother and she packed her bags and moved to Georgia and she would always say mean things about my dad to me and my brother,” said Hossain. “It was not the best growing up with my mom and I would have preferred to live with my dad and right now I’m not talking with my mom, I’m only talking with my dad.”

Hossain now an advocate for the parenting technique. 

“I just don’t want others to have to go through what I did,” she said.

We’re often encouraged to listen to the children of divorce and rightly so. Well, we should listen to both of these young people who see shared parenting from different perspectives, one on the inside, the other on the outside. But both come to the same conclusion – that for them, a shared arrangement is the best when parents go their separate ways.

Meanwhile, Thompson and Family Reunion are promoting shared parenting agreements between parents that simply bypass the lawyers and judges.

“We currently have a very adversarial court system that often pits one parent against the other and I really firmly believe that children need, want and deserve both parents in their lives and currently that’s not happening in the current system that we have,” said Thompson. “Parents go in and instead of going through the court system, they fill out a jointly agreed upon parenting plan that is submitted to the court.”

The fact is that, when parents submit their own agreed plan for custody and parenting time, if it’s reasonable at all, a judge will gladly rubberstamp it. The last thing judges want to see is hostile parents; they take up far too much time and cause far too much stress. Parents who agree with each other move the docket along more or less effortlessly.

And of course an agreed plan is vastly cheaper for the parents and less stressful than a contested case that inevitably requires the time of attorneys, guardians ad litem, custody evaluators and the like.

Unsurprisingly, the overwhelming majority of parents do just what Thompson urges. Interestingly, when parents agree, they create equal parenting arrangements far more often than do judges. That’s one of the many facts revealed by the analysis of North Dakota’s family courts conducted last year by Leading Women for Shared Parenting. There, 44% of cases that were stipulated by the divorcing parents had an equal parenting plan, while only 10% of cases decided by a judge did.

Thompson of course is onto something. Perhaps the best way to change parenting time orders is to simply take responsibility for deciding them out of judges’ hands.

September 26, 2018 by Devin Golden, Guest Writer

Many people who struggle with a mental health disorder can trace their internal struggles back to a childhood event. For some, being bullied at school can affect someone’s future mental wellness. For others, a traumatic event such as a death in the family can lead to depression or another mental illness.

However, sometimes it’s not so much one singular event as it is the family structure in which a child grows up.

Researchers at the Lincoln Prairie Behavioral Health Center in Springfield, Illinois, reviewed 154 patients who were 12 years old and under who were admitted to the center’s preadolescent unit between July and December of 2012. The study was published on the U.S. National Library of Medicine website, and the results show that children from disrupted families are more likely to have mental health issues.

Only 11 percent of children admitted to the center came from intact families, while 89 percent had a disturbance in some way in their family’s structure. The most common type of disruption from the study was single-parent homes, either from divorce or the parent never being married. Forty-four percent of the children admitted to the center who were reviewed for the study fell within that family structure.

Whether it’s trauma, facing economic challenges, experiencing parental depression and stress, or something else, there are many ways living in a single-parent family structure can affect a child’s mental health.

Trauma

For many children, their parents getting divorced can be a confusing event. Not many pre-adolescent kids, or even some teenagers, understand why their parents split up. However, the change from regularly having both of their parents present to just having one around can be extremely traumatic. Divorce can cause even worse trauma if one parent is no longer part of the child’s life in any way.

Dr. Stephen Joseph reported on Psychology Today that a study he conducted showed the effects of divorce on children. Joseph said that 29 percent of boys and 39 percent of girls who had separated or divorced parents reported high levels of post-traumatic stress. These stats are much higher than that of children who had parents still together.

Economic challenges

A study conducted by Dr. David M. Fergusson, Dr. Joseph M. Boden and Dr. L. John Horwood revealed a strong connection between a child’s exposure to single parenthood and them developing an anxiety disorder. The findings, published on the JAMA Psychiatry network, also link growing up with one parent and having poorer economic outcomes than those who were raised by two parents.

Single parents also struggle more with finances because of the restricted income for many. This can result in a child not receiving as many gifts or toys as his or her peers, possibly leading to a feeling of being inadequate or less important others.

Parental depression

Parents who must raise children on their own — either by never becoming married or by going through a divorce — struggle with anxiety or depression because they do not have their parenting partner to relieve the stress of taking care of the home and children. Additionally, any break-up of two people who were in a romantic relationship, especially one that involved childbirth and possibly a marriage, often leads to depression for the separating individuals.

An article on Psych Central titled “Depressed Parents and Their Infants” reveals how single parents who have depression can affect their children.

“Many studies have found that depressed mothers have difficulty bonding with their infants; they are less sensitive to the baby’s needs and less consistent in their responses to the baby’s behavior,” Dr. Richard O’ Connor wrote. “The babies appear more unhappy and isolated than other children. They may be difficult to comfort, appear listless, and be difficult to feed and put to sleep.”

Depression can be a devastating disease, and it’s one that millions of Americans struggle with each day. The illness can even lead to the dangerous use of drugs or alcohol as a coping mechanism, which is all too common. However, the burden of a mental illness combined with substance use does not need to be carried alone. Parents who are faced with the challenges of separation or divorce are encouraged to work collaboratively with their ex-partners, if possible, to help alleviate the pressure of raising children alone. In addition, when necessary, parents suffering from depression, anxiety and addictive disorders should reach out for help, whether through outpatient care or through treatment facilities such as The Recovery Village and other similar centers that are equipped to help them work through their struggles.

 

Devin Golden is a Content Writer with The Recovery Village, a treatment facility helping people with mental health and addictive behaviors in Orlando, Florida

September 26, 2018 by Robert Franklin, Member, National Board of Directors, National Parents Organization

From this article, it’s easy to see that James Millar is a sincere on the issues of paternal involvement in childcare (Huffington Post, 9/14/18).  But there’s so, so much he just doesn’t grasp.

Millar understands that pop culture militates against respect for fathers.

However the patriarch of the [Peppa Pig] family is a buffoon and it’s this that bothers me. Because Daddy Pig is not alone.

Think of dads on TV and the chances are he’s fun, active and inept.

Homer Simpson is surely the most famous father on the planet. And yet he’s also probably the worst example of a dad.

Very true.  Fathers are very often denigrated by various aspects of our culture.

And Millar gets it that fathers, mothers and children all benefit from fathers’ greater involvement in childcare.  Active, involved fathers tend to be happier and better adjusted than other dads, mothers are freed to work, earn and save more and kids benefit in countless ways from their father’s day-to-day attention.

And, unlike so many pundits on the subject, Millar understands that what people say they value and what they do often don’t coincide.

Polling data shows a witheringly small number of people think mum should do most of the parenting. Most folk think it should be shared. A growing number of men, particularly among millennials, yearn for a better work life balance and are keen to trade a higher salary for more time with their family.

Yet in the vast majority of households  it’s the woman that takes on most of the childcare, and all the other domestic tasks, and the man goes out to work full time and brings in the lions share of the income.

That’s all jolly good, but when Millar announces that,

Luckily myself and my co-author David Freed are solutions guys. We know how to close the gap and present in Dads Don’t Babysit a manifesto for a more engaged fatherhood and roadmap of how to get there.

he careens off the rails.

Somehow, Millar’s convinced himself that, really, the solution to all this is simple.  Hey, he and his co-author dreamed up the “solution,” so how hard could it really be?  It seems never to have occurred to them that, in his native UK and across the English-speaking world, people have been struggling for decades to get respect for fathers and fatherhood and have met mostly with hostility and ridicule.

What’s Millar’s “solution?”  More parental leave for fathers and men taking the bull by the horns to “act, talk and agitate.”  Millar knows that fathers take only a small part of the meagre leave they’re given, but has come to believe that, well, they should simply behave differently.  Doubtless, James, once they’ve read your book, they will.

As to “act, talk, agitate,” I’ll deal with the last.

When women fought for the vote a century ago they had to struggle just to be heard and in the struggles since that’s not changed. Men have no such worries. That’s not fair but it’s how it is.

Male voices get listened to in the corridors of power.

It’s time to speak up for equal parenting, and a more equal world.

Oh, do “male voices get listened to in the corridors of power?”  They do, just not about this subject.  In the first place, support for equal parenting isn’t a male/female issue.  This movement has as many female supporters as male ones.  That’s because neither sex has a monopoly on realizing and supporting the right, constructive thing.

Millar’s assumption that no one has yet raised the issue of equal parenting in “the corridors of power” shows how little he knows about his subject.  We’ve been lobbying legislatures for decades and are beginning to have some successes, but it’s been a long, hard slog.

It has been for reasons of which Millar has no concept.  The first is that there is a strong anti-father bias abroad in the land.  Why does he think all those pop culture portrayals of fathers exist?  Like it or not, there are plenty of people who want us to believe that fathers are per se dangerous to children.  Domestic violence organizations have been making the claim since the 70s and routinely oppose any improvement in dads’ legal status.

Does he know about studies indicating strong anti-father/pro-mother bias on the part of judges?  Has he read Roisin O’Shea’s study of judicial attitudes and practices in Ireland?  I wrote about that here, here and here.  What about Maebh Harding’s review of family courts in England?

Then there’s human biology to consider.  The idea that mothers would, as a general rule, prefer to share childcare equally with fathers is simply untrue and the reason is that women are biologically pre-disposed to the primary caregiver role.  Fathers, for their part, are biologically pre-disposed to the secondary caregiver role and the primary provider role.  Unsurprisingly, that’s how most people sort out the work-life balance once the first child comes along.

What about maternal gatekeeping?  Has Millar ever heard of mothers who purposefully marginalize fathers in their children’s lives?

How about courts?  Does Millar understand that family courts routinely give Dad the short end of the parenting time stick when Mom divorces him?

He does not.  The result being that, however well-intentioned he may be, Miller is simply too ill-informed to be writing on the subject he’s chosen.

If the answer to dads’ second-class citizenship in family courts, the news media and popular culture were as simple as Millar makes out, we’d have solved this long ago.  But entrenched interests are ever-ready to thwart the legitimate interests of children, fathers, mothers and society generally.  We’ve known this for a long time.  Amazingly, Millar doesn’t know it yet.

September 24, 2018 by Robert Franklin, Member, National Board of Directors, National Parents Organization

For the first time in the history of the State of Maine, prosecutors and their enablers are being forced to pay money to one of their victims.  In this case, that victim is Vladek Filler although, the way Filler turned the tables on his tormenters, it’s hard to know who’s the victim.

I’ve written about Filler many times before.  During his divorce and child custody suit, his wife Ligia leveled charges of rape against him.  Her claims were false and plainly intended to wrest custody from him and marginalize Vladek in his children’s lives.  The police were happy to assist Ligia in her lies, withholding exculpatory evidence, among other things.  That brought to center stage ADA Mary Kellett who seems to have never heard a claim of sexual assault she didn’t believe.  She took the case to trial and won a conviction until it was overturned due to her outrageous and unethical behavior.  Undeterred, she brought a misdemeanor charge of assault against Filler for allegedly splashing water on his wife.  Yes, she really did that.

Filler was again convicted and again had it overturned due to, once again, prosecutorial misconduct.  Meanwhile, the family court, being less gullible than Kellett, the police and the criminal court, had recognized Ligia for what she was – a wife who’d stop at nothing to separate her kids from their dad – and handed sole custody to Vladek.

Now, at that point, about 99% of people in Filler’s shoes would have heaved a deep sigh of relief and gotten on with their lives.  Not Filler.  He went on the offensive.  He charged Kellett before the Maine state bar association with numerous ethical violations.  The bar agreed, finding she’d committed seven in her mistreatment of him.  She’s still the only Maine prosecutor in memory (and maybe in history) to be sanctioned for her behavior on behalf of the state.  Shortly thereafter, Kellett resigned from the District Attorney’s office.

But Filler wasn’t finished.  He sued the police, Kellett and numerous others who’d conspired to deprive him of his civil rights.  The latest news is that 17 of the 18 defendants have turned tail and run, offering to pay Filler and his lawyers if he’ll just leave them alone.  The 18^th defendant had a default judgment taken against her, apparently secure in the belief that she’s judgement-proof.

Remarkably, the defendants paid Filler and his lawyers despite his refusal to sign a confidentiality agreement.  Those of course are standard in settlements of civil suits.  But, in keeping with his pugnacious approach to everything that’s happened to him, Filler demanded that the world know what had happened.

This is the first time in Maine’s history that the DA’s office has had to pay for its denial of the civil rights of a person it falsely targeted as a criminal.  With any luck, Filler’s successes will encourage others to pursue their rights, and ADA’s across the state to start behaving in accordance with the law and ethical precepts.

Vladek Filler is a stand-up guy.  He’s done a huge service for the people of Maine.  He’ shown that the state isn’t immune from suit and that it can’t run roughshod over We the People.  For that, I say he’s a hero.  Plus, he’s a heckuva good dad.

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 14^th 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.”

September 21, 2018 by Robert Franklin, Member, National Board of Directors, National Parents Organization

This continues the case of Alma S. vs. Department of Child Services of Arizona, this time at the state Supreme Court level. The Supreme Court reversed the appellate court, greenlighting the termination of Alma’s parental rights and the placement of her children for adoption.

In a nutshell, the Court of Appeals held that the evidence was insufficient in the court below for a finding of parental unfitness. It detailed that evidence that seemed somewhere in the range of thin-to-non-existent. The Supreme Court disagreed, saying there was sufficient evidence to uphold the trial court’s ruling.

Now, in attacking the appellate court, the justices of the Supreme Court stooped to framing the issues in some pretty dicey ways.

In reaching its holding, the court rejected the juvenile court’s finding that Mother and Father were still in a relationship, id. at 158 ¶¶ 16–17, 160 ¶ 27, and disagreed with the DCS case manager and the psychologist’s conclusion that Mother lacked the ability to protect the children from abuse…

No, it didn’t “disagree” with the lower court. Disagreement with fact findings by a lower court is simply not something appellate courts do. What it actually did was hold that those findings weren’t supported by sufficient evidence and had to be vacated. The Supreme Court’s iteration suggests not only a lack of respect for the appellate court, but a distinct uneasiness with its own conclusions.

In Arizona, the consideration of whether a parent’s rights to her children should be terminated proceeds along a two-step track. The first requires a finding of parental unfitness. Absent that, the court will not go to the next step which is an inquiry into the child’s best interests.

In Kent K., we implicitly equated the substantive grounds for termination listed in § 8-533(B) with parental unfitness. Id. at 285–86 ¶¶ 31– 32. We now explicitly reiterate that conclusion, which ensures compliance with the due process requirement that a court find, by clear and convincing evidence, parental unfitness when a severance is contested.

So, in order to terminate Alma’s parental rights, the Department was required to prove by clear and convincing evidence that she was unfit to properly care for her kids. To do that, the state presented the following evidence: that her boyfriend had abused one of the children once, that Alma didn’t promptly seek medical care for the child, that her relationship with the boyfriend was (a) abusive and (b) ongoing.

That the boyfriend abused one of the children appears to have been uncontested, and the facts seem to bear it out. But Alma discovered the apparent abuse when she returned home from work in the evening. The very next day, before returning to work, she asked her sister to take the child to the doctor, which the sister did. There was no evidence and no insinuation that waiting overnight to take the child to the doctor adversely affected the child in any way.

There was likewise no evidence that Alma’s boyfriend was abusive to her or that he’d abused the child more than once. Alma said she had little or no ongoing relationship with the boyfriend, but he told a therapist that the two were still dating.

On that basis, the trial court found, supposedly by clear and convincing evidence, Alma to be an unfit mother. By any stretch of the imagination, that’s just not so. If those facts are all it takes for a parent in Arizona to have her child shanghaied away, then next to no one is safe.

The Court of Appeals seems to have seen the travesty of the trial court’s rubberstamp of DCS’s desire to have Alma’s children adopted and moved to put a stop to that injustice. Among other things, it revealed the Department’s clear intention when it failed to inform its hand-picked mental health professional that Alma had tested negative for drugs for the previous three years, that the Department had discontinued requiring her to take the tests and that she no longer had a relationship with the abusive boyfriend.

Unsurprisingly, the psychologist found that Alma was suffering from “cannabis use disorder,” “cocaine use disorder” and “ecstasy use disorder,” which I suspect was the Department’s goal all along. That it failed to provide him truthful information not only reveals the Department’s intentions, but the paucity of its evidence. The Court of Appeals trenchantly stated,

If these conclusions were supported by evidence, they would indeed be significant, but the evidence tells a different story. Conspicuously absent from the information the Department gave the psychologist is any reference to the 14 months of services Mother had successfully completed or was currently receiving. Mother had — without exception — tested negative for drug use; successfully closed out of her drug-testing service because of the lack of any positive test; closed out of drug rehabilitation because the service provider determined that no drug treatment was necessary; participated in domestic-violence counseling and group meetings; and successfully completed at least eight months of parent-aide services and supervised visitation, where she always came prepared and showed proper parenting skills.

¶24 At trial, the expert testified that he never received any information about these services.

Then of course there’s the fact, again recited by the Court of Appeals but not the Supreme Court, that the children were closely attached to their mother and she to them.

Plainly, Alma S. is not everything we’d like a parent to be, but for the umpteenth time, no parent is required to be. In order to maintain their parental rights, parents must only be fit. Unquestionably, Alma is. What the trial court and the Supreme Court overlook is not only the totality of the evidence against her, but its quality. In no sane world would a state be permitted to make off with Alma’s children.

But Arizona has done just that.

Or it has if Alma doesn’t appeal her case to the U.S. Supreme Court. Interestingly, the concurring opinion of Justice Bollick seems to all but beg her to do just that.

September 20, 2018 by Robert Franklin, Member, National Board of Directors, National Parents Organization

This continues the case of Alma S. whose parental rights to her two children were terminated by the ruling of the Arizona Supreme Court. The trial court ruled in favor of termination, but was reversed by the Court of Appeals that was in turn reversed by the state’s highest court. Therefore, as things stand now, the children will remain separated and be adopted. Without intervention by the U.S. Supreme Court, Alma S. is out of luck.

The opinion by the Court of Appeals reveals a shocking abuse of power by the Department of Child Safety. From the appellate court’s description of the Department’s behavior, it appears plain that railroading the children into foster care and then into adoption was the plan all along. Put simply, the evidentiary basis relied on by the DCS and the trial court was woefully inadequate to support termination of Alma’s rights. Worse, DCS handpicked experts to opine in favor of termination and then restricted the information those experts received for the purpose of enhancing the prospects of terminating Alma’s parental rights.

At some point, Alma was living with a man who’d fathered one of her children. The other father was in prison. She went to work one day and left the kids with him. When she returned, it appeared one of the children had been on the receiving end of physical abuse. The next day, Alma asked her sister to take the kids to the doctor to ascertain whether abuse had occurred. She did so, the doctor reported the matter to DCS and the children were taken into care.

DCS gave Alma a plan to improve her parenting which she followed to the letter, completing every aspect of it. Nevertheless, based on a single incident of abuse, not by Alma, but by her boyfriend, DCS took aim at her parental rights claiming she’d failed to prevent the harm.

It also seized on the fact that, several years before, she’d used drugs. That information was sent to their handpicked psychologist who used it in his/her determination that she should be deemed unfit to care for the children. What the Department neglected to do was to inform the psychologist that Alma had tested negative for drugs for over three years and the Department itself had shut down the testing regimen.

Meanwhile, a new case manager’s approach to Alma and her rights was even more plainly aimed at termination and adoption.

The case manager testified that in reaching her conclusion she read several but not all of the parent-aide notes (which total 145 pages), never met with Mother outside of court hearings, only consulted with one of the service providers who worked with Mother, never attempted to confirm her suspicions that Mother and Father were still dating, never observed Mother with the children, and never visited or attempted to visit Mother’s home to see if it would be safe for the children. Such a casual inquiry into the facts is not sufficient to meet even minimal professional standards, and such testimony is not sufficient to defeat fundamental constitutional rights.

That’s not a person who’s interested in determining the truth of whether Alma is a capable and loving mother or whether her kids are being harmed in her care. It’s the behavior of a person who wants those kids out of Alma’s care and into the arms of adoptive parents. Her behavior was too professionally shoddy to admit of any other conclusion.

Not only that, but the DCS claimed that Alma still dated the father who’d abused the child. The only problem was that it had no evidence for the claim and Alma denied it. Plus, that father had already had his parental rights terminated and therefore had no legal right to access the child.

From there, the Department claimed that Alma should lose her children because she had a pattern of participating in abusive relationships. But again, their evidence was ludicrously thin. It amounted to two incidents of inappropriate, but scarcely abusive, behavior by the father of her second child.

The first was when Mother called the police to their home, about a week before I.R. was taken to the hospital, because Father had taken her keys. The second was in August 2015 when Father took Mother’s phone and broke it.

Meanwhile, a parent-aide visited the household regularly and made 145 pages of notes recording her observations.

Nor is there a single notation in 145 pages of parent-aide notes to suggest a pattern of selection of abusive partners by Mother, or abuse by Mother.

And yet the DCS made the claim anyway.

And that, my friends, is the entirety of the case against Alma S. On that basis, the trial court approved the DCS’s request to terminate her parental rights.

What was Alma’s relationship with her children and theirs with her?

According to the parent-aide provider’s records, there was not a single instance of Mother failing to come prepared for a visit nor a single situation involving Mother that required the assistance of the parent aide. Every entry notes the love and affection Mother showed for the children.’’

Mother required little or no counseling on how to improve her parenting skills and there is a bond between her and the children. At the close of the evidentiary portion of the hearing, the Department conceded Mother’s successful compliance with services and the fact that Mother is bonded with the children. There also is evidence of a bond between I.R. and J.R.

So Mom loved and cared for the children who loved her back and were attached to her. They were also attached to each other. The Department’s response to that was to take the children not only from her but from each other – permanently.

Indeed, it appears that the Department itself admitted, by deeds if not words, that there was nothing amiss in Alma’s home.

Parent-aide services ended three weeks after the February 2, 2016 parent meeting because the Department transferred the case to another parent-aide provider. But there is no reference to another service provider anywhere else in the record. It appears the Department never made a referral to a new provider nor attempted to continue the parent-aide service, despite the provider’s repeated recommendations that the service continue.

How does all this square with the requirements of the U.S. Constitution and Arizona law? Not very well.

The best-interests determination does not invite a freewheeling inquiry by the government into what placement would be “best” for the child in the abstract. It is unconstitutional “to force the breakup of a natural family . . . without some showing of unfitness and for the sole reason that to do so was thought to be in the child[ ]’s best interest.” Quilloin v. Walcott, 434 U.S. 246, 255 (1978). “In any severance proceeding, the material issue facing the court is whether a parent has the ability to properly parent his/her child . . . .” Roberto F. v. Ariz. Dep’t of Econ. Sec., 232 Ariz. 45, 54, ¶ 42 (App. 2013). Indeed, “[t]he State’s interest in finding the child an alternative permanent home arises only ‘when it is clear that the natural parent cannot or will not provide a normal family home for the child.’” Santosky, 455 U.S. at 767 (citation omitted). “So long as certain minimum requirements of child care are met, the interests of the child may be subordinated to the interests of other children, or indeed even to the interests of the parents or guardians themselves.” Reno v. Flores, 507 U.S. 292, 304 (1993).

When the term “best interests of the child” is used, it seems to invite a sort of “common sense” interpretation, i.e. in what situation would the child be best off? But that is fundamentally flawed. As the U.S. Supreme Court has repeatedly made clear, parents have rights and therefore any move by the state to terminate those rights on the grounds of the child’s best interests must be based on the parent’s unfitness, irrespective of whether the child might be better off elsewhere.

To do otherwise, to simply ascertain in which living environment a child would be better off, would be to invite the state to take the children of the poor and transfer them to the more affluent. After all, in the latter environment, they’d likely go to better schools, eat better food, receive better medical care, etc. But it is precisely that sort of exercise of state power that individual parental rights exist to thwart.

They do so for the best of reasons – the state’s interest in intact families. The more we encourage families to remain together, the more we keep kids with their biological parents, the better off the kids are. That in turn means that society is better off because kids raised by their parents tend strongly to do better in all the ways stable, productive societies want. State intervention into family life is sometimes necessary, but must be kept to a minimum because, overwhelmingly, the state is a far worse parent than the parent.

The Arizona Court of Appeals grasped those concepts. Did the state Supreme Court?

September 19, 2018 by Robert Franklin, Member, National Board of Directors, National Parents Organization

I can’t be sure from this article, but it looks like the Arizona Supreme Court may have made a big mistake (AZ Central, 9/17/18).  The article is well done, but I need to read the SC decision and that of the Court of Appeals before I can be sure what happened.

Suffice it to say that, if writer Mary Jo Pitzl is correct, this case should be headed to the U.S. Supreme Court.

A judge’s decision that it was in the best interest of two children for their mother to lose parental rights was correct, the state Supreme Court found, reversing an earlier decision that such a move was based on shaky facts.

The unanimous ruling last week made clear that when it comes to child neglect or abuse, the child’s best interest overrides a parent’s rights.

Hmm.  My guess is that the court’s holding is something other than that, because simply comparing a parent’s rights with the best interests of a child is the short route to state control of all children’s upbringing.  Consider:

A state’s child protective authority takes a child from its parents for whatever reason, good or bad.  The state places the child in foster care and leaves it there for months.  During that time, the child inures to the foster placement.  CPS then goes to court and tells the judge that the child is doing well and it would be upsetting to return it to its original home.  Therefore, if a child’s interests really do trump the parent’s rights, then the child remains in foster care or gets adopted, irrespective of whether the state was justified in taking the child in the first place.

The above would be (a) terrible public policy, (b) in violation of U.S. Supreme Court precedent, (c) bad for children, (d) bad for parents and (e) bad for society generally.

It also appears to be close to what happened.

Alma S. had her two children taken from her by Arizona child welfare authorities.  The two were placed in separate homes.  The apparent reason why they were taken was that Alma was living with an abusive man, although who he abused – her, the children or both – isn’t clear.

The Supreme Court concluded that even though the record showed the mother had made progress in working to better protect her children, at the time of the Juvenile Court ruling, she appeared to still be in an abusive relationship with the father of one of the children. That put the children in a risky situation and justified the termination order.

What this doesn’t tell us is whether the children were ever actually harmed or whether they were merely “at risk.”  Whatever the case, Alma was making progress and, in her words, “I always had hope… because I complied with everything that they wanted me to do.”  So DCS had taken her children, given her a plan to improve her parenting, she’d complied with the plan, but they’re intending to terminate her rights and place the kids for adoption anyway.

The Court of Appeals thought it knew why.

In a blistering critique, it found the case against her was not sufficiently supported by Department of Child Safety evidence.

There appeared to be only one motive to separate the mother from her kids: that the children were adoptable, the appeals court concluded.

Ah, where have we seen that before?  That’s right, everywhere.  The tendency of child protective agencies nationwide to take children from parents has for many years been increasing because federal largess encourages states to do so.  The Clinton Administration signed the Adoption and Safe Families Act that provided cash incentives to states to take children from families and place them for adoption.  Unsurprisingly, states respond to the incentive.

Plus, in Alma’s case, it appears that Arizona law doesn’t comply with U.S. Supreme Court precedents.  Justice Clint Bollick concurred in the decision of the Arizona high court, but added some trenchant thoughts.

[H]e questioned if Arizona law provides sufficient protections for parents.

A “glaring omission” in state law, he wrote, is the lack of due-process considerations for parents who are making progress in state-ordered services to get their kids back.

The 1982 U.S. Supreme Court ruling required states to make “diligent efforts to encourage and strengthen the parental relationship.”

That requirement does not exist in Arizona law, neither in how DCS views efforts to help reunify families, nor in how the courts treat termination requests, he wrote.

That is why this case needs to be heard by the U.S. Supreme Court, and the sooner the better.