July 30, 2017 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization
This continues my discussion of the grave miscarriage of justice that is the California Supreme Court’s decision in the case of In re R.T.
Not only did the Court reach its decision without apparently any evidence with which to support a finding that R.T. runs a “substantial risk of harm,” it approved the child’s removal from her mother’s care despite there being no finding of unfitness, neglect or abuse by her. In a previous appellate court decision, that very course of action was rejected and with good reason. In In re Precious D., another case (like In re R.T.) dealing with an incorrigible daughter whom the mother was unable to control, the court made the obvious and correct observation.
Under DCFS’s construction of section 300(b), dependency jurisdiction might be asserted over an incorrigible child whose parent is neither unfit nor neglectful. Such a jurisdictional finding might then be the basis for the child’s removal and for an order requiring reunification services that are either unnecessary or doomed to failure due to incorrigible conduct on the child’s part, and then for the ultimate termination of parental rights. Thus, parental rights might be terminated and the family unit destroyed without any finding of unfitness or neglectful conduct. Such a result would not comport with federal due process principles.
Just so. The state Supreme Court has established as a matter of law in California that a parent need do nothing wrong in his/her care of a child and still have the child removed from the family, perhaps permanently. Such a ruling does indeed “not comport with federal due process principles.” Here’s what the U.S. Supreme Court had to say in Troxel v. Granville.
A combination of several factors compels the conclusion that [Washington State Statute] §26.10.160(3), as applied here, exceeded the bounds of the Due Process Clause. First, the Troxels did not allege, and no court has found, that Granville was an unfit parent. There is a presumption that fit parents act in their children’s best interests, Parham v. J. R., 442 U.S. 584, 602; there is normally no reason for the State to inject itself into the private realm of the family to further question fit parents’ ability to make the best decisions regarding their children, see, e.g., Reno v. Flores, 507 U.S. 292, 304.
Given that fit parents are presumed to act in their children’s best interests and that there is normally no reason for the State to interfere with the decision-making of fit parents and that R.T.’s mother is a fit parent, what evidence did the DCFS offer in court to rebut that presumption? Unless the state Supreme Court simply failed to mention it, there was none. Indeed, the Court barely mentioned the issue of constitutionality and then in the strangest and least competent way imaginable.
Its entire “analysis” of the constitutional issue never mentions a single U.S. Supreme Court case regarding parental rights. Its sole purpose is to laud the many procedural safeguards it believes prevent a mother like R.T.’s from losing custody of her daughter altogether. Of course those safeguards are all well and good, but in limiting its analysis to them, the Court ignores certain obvious things.
First and foremost, the opinion ignores the fact that those safeguards should never come into play because the state has no business interfering in the parents’ decision-making in the first place. Parental unfitness is the door through which the state may enter family life. Absent such a finding, it has neither the right nor the power to second-guess a parent, much less take away a child. As the California Supreme Court itself said,
[A]fter the preliminary step of dependency adjudication, ―the system includes many subsequent safeguards to ensure that parental rights and authority will be restricted only to the extent necessary for the child‘s safety and welfare.‖
The key word there is “after.” As long as the parent is fit, as R.T.’s is, there can be no adjudication of dependency. Such an adjudication can take place only if there’s been a finding of unfitness, abuse or neglect. But Lisa E. (R.T.’s mother) is a fit parent, neither abusive nor neglectful. She’s beyond the reach of the DCFS. Her parental rights cannot be infringed by the state. Period.
Second, the Court writes as if the only way in which a parent’s rights can be infringed is by termination of them. That’s utterly untrue as even a casual reading of Troxel reveals. Any action by the state to diminish or limit those rights must be done only with due process of law and that can only happen if the parent has been shown to be unfit. The California Supreme Court doesn’t seem to know the basics of constitutional law as it regards parents, their rights and their children.
This case should be appealed to the U.S. Supreme Court. It’s far too expansive a view of state power and far too restrictive a view of parental rights and the U.S. Constitution to let stand.
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