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.  

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.

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