NPO publishes blog articles to inform and to stimulate conversation about issues of importance to NPO's mission.  All blog articles express the opinions of the authors as individuals and do not necessarily reflect the views of National Parents Organization, its Board of Directors, or its executives.  

December 28, 2015 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization

Bad as the Colorado Supreme Court’s decision has so far, it gets worse – much worse. Indeed, taken altogether, it’s so bad that it urges the conclusion that the justices voting with the majority simply made up their minds about the result they wanted in M.C.’s case and did what was necessary to reach it. In so doing, they ignored not only the bad behavior of the children’s mother and the adoptive parents, but Colorado law and United States Supreme Court precedent.

The majority also ignored not only basic logic, but their own basic logic. As I showed yesterday, M.C. provided much in the way of items needed for the care of children, such as food, clothing, car seats, a stroller, toys, etc. The court cited the definition of “support” that includes several of those items and then simply claimed that, contrary to the definition to which it referred, the things provided by M.C. didn’t constitute support for his twin sons.

Needless to say, the majority decision also didn’t mention the fact that, according to much social science and the Office of Child Support Enforcement, the type of things provided by M.C. do constitute support. The only situation in which they don’t is when there’s a court order for a non-custodial parent to pay a certain sum of money periodically to the custodial parent as child support. In that case, only money will do. But in M.C.’s case, there was no child support order, despite the fact that he’d attempted to get the trial court to issue one. So, based on the facts of the case, logic and common sense, the items provided by M.C. are clearly a form of support for his kids.

But, as I said, it gets worse. That’s because the majority ignored Colorado case law governing the termination of parental rights. I’m not making that up. In Colorado, when considering whether to terminate a parent’s rights to his/her children, one of the things a court must consider is whether the parent has taken responsibility for the children by paying child support to whoever’s been caring for them. That the trial court did.

But what it didn’t do is consider the rest of the child support requirement under established Colorado law. In order to terminate a parent’s rights, a court there must not only ask whether the parent has paid child support but whether he/she is likely to do so in the future. That inquiry is required by the 1985 Colorado Supreme Court case of In re H.R.N., but by 2015, the same court was happy to ignore it.

Had it complied with standards it previously laid down and that constitute binding precedent, the Court would have been forced to conclude that, in fact, there was every likelihood that M.C. would have continued to support his children. The undisputed facts of the case are that M.C. is in fairly good financial condition and that he was highly motivated to care for his children, not just while they were with the putative adoptive parents, but always.

So in fact, the Supreme Court violated its own precedent in order to terminate M.C.’s parental rights. The fact was not lost on the two dissenting justices.

Moreover, our case law requires that “[i]n order to provide a [termination] procedure that is fundamentally fair,” the trial court must also consider whether the parent is likely to pay child support in the future… Here, the trial court performed no such analysis; if it had, it would have concluded that M.C. would pay child support once the issue was formally determined.

When it came to ignoring its own precedents, the Supreme Court didn’t stop there. The same case, In re H.R.N., requires courts to consider “the actual physical needs” of the child in determining whether the parent’s support has been “reasonable” as required by statute. In M.C.’s case, his children were being well cared for by putative adoptive parents, who were acknowledged by all to be, like M.C., financially well-off. In short, for the brief three months during which M.C.’s support of his children was at issue, the boys had no physical needs that weren’t being met. M.C. provided support anyway, but the fact remains that, had he not, his kids would have been the same healthy, thriving little boys they’d always been.

In short, not content with ignoring the basic facts of the case, logic and common sense regarding what constitutes support for children, the majority also ignored its own precedent for the purpose of terminating M.C.’s parental rights.

It also disregarded the plain import of decades of United States Supreme Court case law on parents’ rights.

Now, it’s true that there’s no SCOTUS case that directly controls the outcome in M.C.’s case. But we can still read the holdings and dicta in those cases and compare them with what the Colorado majority did and ask ourselves whether the state court’s ruling comports with the clear import of the U.S. Constitution as articulated by those cases. The answer is that the Colorado court did no more than pay lip service to M.C.’s constitutional rights, and barely that.

Consider the weight given to parental rights by the U.S. Constitution as described by the Supreme Court in Troxel v. Granville.

The liberty interest at issue in this case--the 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. More than 75 years ago, in Meyer v. Nebraska, 262 U. S. 390, 399, 401 (1923), we held that the "liberty" protected by the Due Process Clause includes the right of parents to "establish a home and bring up children" and "to control the education of their own." Two years later, in Pierce v. Society of Sisters, 268 U. S. 510, 534-535 (1925), we again held that the "liberty of parents and guardians" includes the right "to direct the upbringing and education of children under their control." We explained in Pierce that "[t]he child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations." Id., at 535. We returned to the subject in Prince v. Massachusetts, 321 U. S. 158 (1944), and again confirmed that there is a constitutional dimension to the right of parents to direct the upbringing of their children. "It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder."…

Accordingly, so long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent's children. See, e.g., Flores, 507 U. S., at 304.

Now ask yourself whether the Colorado majority honored M.C.’s rights, described in such weighty terms, when it relied on a single instance of inaction on his part to deny him his parental rights. There is no dispute that M.C. is a fit parent. Therefore, the state has no business second-guessing his behavior regarding his children or intervening in his relationship with them in any way.

But what the state did was to “inject itself into the private realm” of M.C.’s family in the most extreme way possible. It ordered that he has no rights to the children he loves and whom he has always done everything in his power to care for. It forever destroyed his family.

The Colorado Supreme Court’s ruling is a disgrace. I very much hope M.C. will seek a writ of certiorari to the United States Supreme court to correct this ill-considered and apparently biased decision.


National Parents Organization is a Shared Parenting Organization

National Parents Organization is a non-profit that educates the public, families, educators, and legislators about the importance of shared parenting and how it can reduce conflict in children, parents, and extended families. Along with Shared Parenting we advocate for fair Child Support and Alimony Legislation. Want to get involved?  Here’s how:

Together, we can drive home the family, child development, social and national benefits of shared parenting, and fair child support and alimony. Thank you for your activism.

#parentalrights, #U.S.Constitution, #fathers'rights, #adoption, #terminationofrights 

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