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April 25, 2014 by Robert Franklin, Esq.

A Minnesota father who is mentally impaired has had his parental rights reinstated by an appellate court following their termination by a trial court judge. Read about it here (Minneapolis Star Tribune, 4/21/14).

Apparently the father had a relationship with a woman who, two years ago, came to the attention of the state’s child protective services. She had other children by other fathers, all of whom had been taken from her and placed in foster care. She agreed to have her parental rights terminated and, when it came to her daughter by the mentally-impaired dad, she did the same.

But he adamantly refused to give up his daughter who is now four. The extent of his impairment remains an issue.

The father, who is in his early 30s, has below-average intellectual functioning and an IQ of about 73. [The father’s attorney, Tim] Dodd said that number seems low, citing his client’s ability to run a local sandwich shop by himself, including being entrusted with opening and closing it.

Whatever the exact extent of his impairment, he’s an enthusiastic father with a great love for his daughter whom his attorney says he would never harm.

At the time, a psychologist who performed a parenting evaluation on the father said his relationship with his daughter was beneficial but “he can’t parent 24/7.” She said he could co-parent effectively with the help of his own mother, but that there were concerns about her health…

The father told the district court that he had taken care of his daughter on several weekends without incident. If he encountered problems, he said, he would seek advicehttp://images.intellitxt.com/ast/adTypes/icon1.png from his mother or the county…

The county also had said it was worried the father might show poor judgment in an emergency.

But Dodd said “you would have to go a long way” to find a man with his client’s personal character. He recounted the father’s story of how he felt like the proudest dad in America one day when he took his little girl to church.

Dodd’s client will now work with the county to furnish additional services for child care, expanding the time the man spends with his daughter and seeing “how far he can take it,” the attorney said. If he gets in over his head, he will ask for help, Dodd said, adding, “He wouldn’t place her at risk.”

The father seems to have a level of parenting capability at which he can do most things for himself, but may need help with others. When those problems arise, he’ll have his mother at hand to help and the assistance of county social services employees. He’s a responsible dad who wants to do everything he can to raise his daughter and will call for assistance when it’s needed. In short, he’s a man who’s dealing with issues few of us can even imagine and putting himself to the test every day so his daughter will have her father by her side. He’s a stand-up guy by any definition of the word.

Of course the real issue is not his personal moral fiber, but whether he can raise his child effectively, keep her from harm and provide her the things she needs to develop mentally and emotionally. The answer seems to be that, at least for now, he can. But that wasn’t good enough for the trial court.

The district court terminated his parental rights, saying that his daughter would be better off in a more stable household and that his cognitive deficiencies should preclude him from having his daughter on a full-time basis.

I don’t mean to point out the obvious, but where a child would “be better off” isn’t the issue. There’s barely a family on the planet than which we couldn’t find another family to give a child a better home. Simply locate a wealthy couple who are healthy and provide a good environment for kids and – presto! – you have a family with whom most kids would be better off than the one they’re with. The “better off” standard is an open invitation for the affluent and well-educated to make a business trafficking in other people’s children. The adoption industry being what it is, there’s enough of that going on already.

And of course, there is no “better off” legal standard. There is, however, a constitutional one. It says that states have no legal interest in interfering with the parenting decisions of parents unless and until those parents are proven, by due process of law, to be unfit. Clearly, the father in this case is impaired, but not unfit.

Like the trial judge, the county seeking to terminate his rights seems to have grasped the law and the man’s rights imperfectly if at all. Its take on his fitness as a parent included the concept that, since he may at some future date be unable to deal with the day-to-day parenting of a growing girl, he should now be removed from her life. The judge bought that inherently flawed notion, but the appellate court knew better.

On appeal, the court had to determine whether the termination was supported by clear and convincing evidence that it was done in the child’s best interests. In other words, “the mental retardation must directly affect the ability to parent,” the ruling said…

In the Detroit Lakes father’s case, [Appellate Court Judge Larry] Stauber said some the county’s concerns were speculative and remain to be seen, such as the worry that he will be unable to keep up with his child’s development.

The Court of Appeals got it right. It’s true that some parents are so impaired one way or another that they can’t properly care for or support their children and may prove a danger to them. In those cases, sadly, termination of rights may be necessary and appropriate. But there are all sorts of remedies in between sole custody and termination that a court can order that keep the child safe but don’t cut off the parent-child relationship completely. Supervised visitation is one example.

But, as the court said, the important consideration in these cases is whether the parent’s impairment, whatever it may be, affects his/her parental capabilities. And even if it does, it must do so to an extreme degree to warrant termination of rights. Clearly, this was not such a case and the trial court wrongly severed the father’s relationship with his daughter.

Needless to say, this is yet another example of governmental overreach. I suspect that all were well-motivated in this case. I don’t doubt that the various child welfare employees, county attorneys, etc. believed the girl would be better off in foster care. But neither the law nor the social science on children’s well-being supports that conclusion. It seems to be part and parcel of submitting problems to governmental scrutiny; government officials have a way of thinking that doing something is better than doing nothing. But would foster care, with all its well-known problems, truly have been an improvement for this little girl?

Few studies support the proposition and many contradict it. The trial judge may want to remember an important lesson: the fact that there’s a problem doesn’t mean the “solution” is better.

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