September 29, 2020 by Robert Franklin, JD, Member, National Board of Directors
On September 7, the Nebraska Supreme Court issued a very good decision in the case of Nebraska ex rel. Tina K. vs. Adam B. and Jo K. It’s not as perfect as I’d like, but it clearly sets out the conditions under which a court may deprive a parent of the care, love and companionship of his/her child. The court adopted the reasoning of a New Jersey Supreme Court case that held that the preference accorded biological parents can only be overridden in rare circumstances, defined as “serious physical or psychological harm or a substantial likelihood of such harm.”
Tina K. is the more important because of the nature of the parents involved. They weren’t good. Given that, the court’s stringent requirements placed on the state clearly apply to protect almost any parent.
Tina K. and Adam B. lived together for a few months and had a child, Destiny B., in 2003. It appears that Tina was a heavy user of methamphetamine and did so during her pregnancy with Destiny. The Supreme Court’s recitation of the facts of the case is sometimes vague, but, over the years, Tina seems to have been more of a drug addict than anything else. While Destiny was growing up, Tina went to prison twice for selling controlled substances. When out, she seems to rarely have had a fixed residence or a functioning car.
Indeed, the one justice concurring in the case had this to say about Tina:
I believe there was sufficient evidence based on a de novo review of the record to find Tina was unfit to parent her minor daughter, Destiny B. Tina’s repeated criminal actions resulted in her inability to parent, and her lifestyle choices created an unhealthy and unstable living environment.
But, during Destiny’s teenage years, Tina definitely improved her behavior, found an apartment and a job and apparently got off the stuff. She did so sufficiently for the trial court to find that she was not an unfit mother.
Adam B. was less so. The two traded off custody of Destiny for about 12 years and eventually Adam admitted that he shouldn’t have custody of his daughter. During the gaps in parental custody, Jo K. stepped in. She seems to have been, at the very least, a capable and caring stand-in for a parent and Destiny, who was a poor student in her mother’s care, pulled herself up nicely with Jo. Eventually, she was making honor-roll type grades.
With Adam out of the picture, Jo sought custody of Destiny and the trial court agreed finding that, although Tina was a fit parent, Destiny’s best interests demanded that she live with Jo. In short, the court used the undefined and free-wheeling “best interests” standard to oust a mother from custody of her child. And that, under the U.S. Supreme Court case of Troxel v. Granville, it cannot do.
The Nebraska Supreme Court said exactly that. Given a parent who is not unfit (defined as a personal deficiency or incapacity that has prevented, or will probably prevent, performance of a reasonable parental obligation in child rearing and that has caused, or probably will result in, detriment to a child’s well-being), a state may only intervene in parenting to prevent the aforementioned “serious physical or psychological harm or a substantial likelihood of such harm.” The trial court clearly didn’t think any such thing had happened or was likely to, but transferred custody to Jo anyway. That was legal error and the high court reversed the decision.
This case goes to bat for natural parents against all others. It may make some readers uneasy because, on balance, Jo seems to be clearly the better caregiver to Destiny. But it is exactly that type of ad hoc decision-making that Troxel is designed to avoid. We can always find someone who might be a better parent than the child’s mother or father. Under the best interests standard, any impecunious parent could be removed by the state in favor of any well-heeled adult.
But to favor such judicial outcomes would be public-policy madness, to say nothing of disastrous for child well-being. The fact is that, in this country, parents have parental rights, as they should. As the Nebraska court said,
Parents have a fundamental right to make decisions concerning the care, custody, and control of their children that is constitutionally protected. Establishment and continuance of the parent-child relationship is the most fundamental right a child possesses to be equated in importance with personal liberty and the most basic constitutional rights. In recognition of this important relationship, the parental preference principle establishes a rebuttable presumption that the best interests of the child are served by placing custody of a minor child with his or her parent. Under the parental preference principle, absent proof that a parent is unfit or has forfeited the right to custody, a parent may not be deprived of the custody of a minor child.
Parental rights are enshrined in law as sacredly as any of our legal rights and more than most. They cannot be removed or ignored by a judge on the basis of what may or may not be of benefit to a child. Those who believe that a child’s best interests should rule in all cases must consider that the alternative to parental rights is the control of children by the state. They should then consider that the record of state interference in parental decision-making is littered with incompetence, arrogance and child abuse. Read the news any day about the behavior of child protective services and see what I mean.
Now, I’m not at all convinced that the above quotation is an entirely fair reading of Troxel. The U.S. Supreme Court made it abundantly clear that, absent a finding of unfitness, the state has no interest in parenting decisions. The Nebraska and New Jersey courts skirt that ruling and embroider it with considerations unmentioned in it.
Still, the law in Nebraska appears pretty clear: it takes a finding of parental unfitness for a state to oust a parent of custody and unfitness consists of fairly extreme behavior that states will usually be hard-pressed to prove.